John Gardiner-Garden
Social Policy Group
29 June 1999
Contents
Major Issues
Introduction
PART I: The First 200
Years
The 19th Century and the
Period of Dispossession
The Mid 20th Century and
the Period of Assimilation
1967 Referendum and a New
Beginning
The Early 1970s and
the Concept of 'Self-determination' and 'Self management'
The Late 1970s and
Early 1980s-the Concept of a Treaty or 'Makarrata'
The Mid 1980s and the Return
of the Concept of 'Self-determination'
PART II: The Next 10
years
The Late 1980s and the
Concept of a 'Compact'
1989/1990 and the Concept
of 'Self-government'
The Late 1980s/Early
1990s and the Concept of Reconciliation
The Response to Mabo and
Debate on a 'Social Justice Package'
The Mid 1990s and the Inquiry
into the Separation of Indigenous Children
The Late 1990's and a New
Language
Part III: The Last Year
The 1998 Election and a
New Commitment
The End of 1998/Beginning of
1999 and a Plethora of Problems
Early 1999 and a Draft
Pre-amble
Mid 1999 and a Draft
Declaration of Reconciliation
Part IV: The Road Ahead
The Apology Obstacle
Conclusion
Appendix 1. Council for
Aboriginal Reconciliation, Addressing the Key Issues for
Reconciliation, Canberra, 1993, pp.51-52
Appendix 2: Parliamentary
Motions of Apology-Stolen Children
Appendix 3: Overseas Use of the
Term Reconciliation
Endnotes
Major Issues
This paper attempts to trace the rhetorical road
which has led from the period of dispossession and the policy of
assimilation to the later policy of self-determination and the
present process of reconciliation.
The notional citizenship ascribed to Aboriginal
people at the end of the 18th century was eroded during the
nineteenth century-with dispossession from land being followed by
dispossession from family. In the mid-twentieth century a
rhetorically more benign period of assimilation was ushered in, but
laws, including Commonwealth laws-intended to 'protect' or advance
people's 'welfare' quickly became laws which further oppressed and
alienated indigenous people. Indeed, during this period the removal
of children from indigenous parents shifted from being an ad hoc
State practice to a systematised strategy agreed on by all
governments, State and Federal.
In the early 1960s, as more voices drew
attention to the meagre achievements of the assimilation policy,
the Commonwealth began to reform the system within its own
jurisdiction, removing various legal liabilities it had imposed, or
let be placed, upon indigenous Australians. The States soon began
to follow suit, repealing most of their discriminatory legislation.
The 1967 referendum, although simply clearing a broader way for the
Commonwealth to make special laws in relation to Aboriginal people,
was subsequently linked in the popular imagination with a wide
range of developments which took place between the early 1960s and
early 1970s-a decade which ended with the emergence of the new
policy of 'self-determination'.
With the Fraser Government dropping
'self-determination' from Commonwealth rhetoric and showing no sign
of following up its support for land rights in the Northern
Territory with support for a national system of land rights, a
campaign got under way for a more basic immutable recognition of
indigenous rights in the form of a 'treaty', 'compact' or
'makaratta'.
When the Labor party returned to office in 1983,
'self-determination' returned to the Commonwealth vocabulary, the
issue of national land rights was again on the agenda and work
began on moving away from the Departmental model of service
delivery towards that which became the Aboriginal and Torres Strait
Islander Commission. However, when the Hawke Government
subsequently limited that which it meant by self-determination and
backed away from the pursuit of national land rights, calls for a
treaty became even stronger. In 1988 Prime Minister Hawke committed
his government to concluding a 'compact' by 1990. Failing, however,
to achieve bi-partisan support for a treaty or even a resolution
backing the right of indigenous people to self-determination, the
Hawke Government started to see some merit in the concept of
'reconciliation' being advanced by the Christian Church
leaders.
In 1991 bi-partisan support was achieved for the
passage of a bill setting up the Council for Aboriginal
Reconciliation and setting in motion a formal ten-year 'process of
reconciliation'. Prime Minister Keating, in his Redfern speech of
December 1992 and his Government's decision to set up a national
inquiry into the separation of indigenous children, sought to
advance this process by encouraging some recognition of past
injustices. In his government's native title and land fund
legislation and proposed 'Social Justice Package' he sought to
advance the process of making amends for the disregard of
indigenous common law rights which the 1992 Mabo judgement had
found to have occurred.
The new Howard Government dropped the terms
'social justice' and 'self-determination' and withdrew support from
many of the initiatives and institutions for which these terms were
the raison-d'etre and declared its new priorities to be
'accountability', 'improving outcomes in key areas' and 'promoting
economic independence'. Many of the Government's subsequent
administrative actions, together with the Prime Minister's
perceived lack of action over responding to the rhetoric of One
Nation, ended up, however, placing an enormous strain on its
relationship with the indigenous community.
Upon his re-election in October 1998, Prime
Minister Howard acknowledged at least one instance in which his
words could have been better chosen and declared reconciliation
would be a priority for his Government's second term. It soon
became clear, however, that the reconciliation to which the Prime
Minister had committed himself appeared to be a much narrower
concept than that to which many others in the community were
working. The Prime Minister did eventually express support for some
form of constitutional recognition of indigenous people and
declaration of reconciliation, but his own proposed constitutional
preamble fell well short of recognising prior indigenous
custodianship of the land or any past injustices, his impression of
the Council for Aboriginal Reconciliation's Draft Declaration was
that it would need amendment and he has continued to resist calls
to making a formal Government apology for past injustices.
On 4 June 1998 the Council for Aboriginal
Reconciliation formally opened a six month process of public
consultation leading up to a National Reconciliation Convention on
27 May 2000 at which a final plan will be presented.
On 1 January 2001, the anniversary of the
Centenary of Federation, the Reconciliation Council will cease to
exist. What may be in place when it does so, in terms of documents,
preambles, new bodies etc, is still far from clear.
Introduction
In the early years of colonisation indigenous
Australians occupied an important place in the lives and writings
of Australian settlers, but as indigenous dispossession became
complete there descended that which the anthropologist W.E.H.
Stanner dubbed 'the great Australian silence', an inattention, he
argued, resulting not from an accidental oversight but from viewing
Australian history and society through a window carefully placed to
exclude a whole section of the landscape.(1) Over the last 30 years
writers of histories, reports, commentaries and judgements have
offered more and more windows onto once hidden parts of the
landscape and this has resulted in a broadening of the public
debate on indigenous affairs. This debate, which had been centred
for most of this century on how best to implement 'assimilation',
moved on to explore concepts of 'self-management',
'self-determination', 'self-government', and 'sovereignty', and to
grapple with the possibility of a 'treaty', 'compact' or
'makarrata'. In more recent years the debate has progressed onto
the issues surrounding a possible 'social justice package',
'preamble to the constitution' and 'an apology for past policies'.
In June 1999 the debate received a new focus with the Council for
Aboriginal Reconciliation releasing its draft 'Declaration for
Reconciliation' and formally opening a final process of public
consultation leading up to a National Reconciliation convention in
May 2000.
No matter how far debate progresses, however,
the past is never far behind. It is no surprise, therefore that
protagonists in the debate sometimes label each other according to
their purported attitude to the past, that is as being adherents to
a 'black arm band' or 'white blind fold' view of history.(2)
This paper attempts to trace the rhetorical path
which has led from the 'policy of assimilation' to the present
'process of reconciliation' and to identify some of the main
obstacles still to be negotiated if the goal of reconciliation is
to be attained in any meaningful sense by the centenary of
Federation in 2001. In so doing many issues will be touched upon,
but in an attempt to keep the chronology moving and the main themes
in focus, discussion of some of these issues (for example land
rights legislation and service delivery mechanisms) may be episodic
and limited.
PART I: The First 200 Years
The 19th Century and the Period of
Dispossession
The first century and a half of
European-Aboriginal relations in Australia can be characterised as
a period of dispossession, physical ill-treatment, social
disruption, population decline, economic exploitation, codified
discrimination, and cultural devastation. The notional citizenship
ascribed to the Aboriginal people at the beginning of this period
was all but gone by the end of it, and as if to illustrate this
point, in every State the law specifically sanctioned the removal
of Aboriginal children from their parents. The aim of such removals
was to separate 'full-bloods' from the 'half-castes', curb
indigenous reproduction (girls being especially targeted for
removal), provide a cheap source of labour and facilitate the
Christianising of the indigenous population.(3) In NSW, from 1909,
the Aborigines Protection Board consciously strove to remove
children of Aboriginal people from the influences of the camps and
in 1915 the NSW's Aborigines Protection Act was amended to
allow the Board 'to assume full custody and control of the child of
any aborigine'- underwriting what was already the practice.
Similarly, according to the Northern Territory Aboriginals Act
1910, passed by the South Australian Parliament in preparation
for Commonwealth administration, the Chief Protector, represented
by a protector in each Protector's District, was to be the legal
guardian of 'every Aboriginal and half-caste child' up to the age
of 18, irrespective of whether that child had a parent or other
relative alive, and in due course it became usual for a protector
to remove the children with light skins from their mothers. In
Victoria too, as early as 1919, the inspector from the Aborigines
Protection Board with police assistance forcibly removed children
with lighter skins from their parents.
The Mid 20th Century and the Period of
Assimilation
In the mid-20th century the State's control over
Aborigines started to be regarded as analogous to that which the
common law permitted a father to exercise over his children.
Although the legislation in this 'period of assimilation' varied
between states, in every jurisdiction it tended to touch on similar
areas (where an Aboriginal person could live, their access to
alcohol, their wage rate, their access to their own wages, and whom
they could marry) and laws intended for the 'protection' or
'welfare' of Aboriginals became laws which oppressed and alienated
indigenous people.(4) Commonwealth legislation was no exception.
Throughout the period of assimilation Commonwealth legislation
supported discrimination against Aboriginal people in such areas as
voting rights, wage entitlements and social security
eligibility.(5) Indeed, it was not until 1966 that the Commonwealth
extended social security eligibility to all indigenous
Australians.
The above regulations and restrictions all
illustrate that which Jeremy Beckett refers to as the
'contradictory nature of the Assimilation Policy', a policy
which:
used the goal of eventual entry into the
community as a justification for segregating Aborigines on
settlements, and the goal of eventual citizenship as justification
for curtailing their civil rights.(6)
Nowhere, however, does the destructive and
contradictory nature of the assimilation policy become so apparent
as in the area of the removal of indigenous children from their
parents. The haphazard State legislation in this area in the late
19th and early 20th century gave way in the mid-20th century to
systematised removal. In 1937 the Commonwealth State Native Welfare
Conference declared that 'the destiny of the natives of aboriginal
origin, but not the full blood, lies in their ultimate absorption
by the people of the Commonwealth' and the conference recommended
'that all efforts be directed to that end'(7). There followed more
rigorous surveillance and enforcement regimes, underpinned by the
notion that there was nothing of value in indigenous culture. Some
jurisdictions, such as Western Australia, Northern Territory, South
Australia and Queensland, continued with their special laws into
the later 1950s and early 1960s, before transferring indigenous
children to the mainstream system. Others, such as Victoria,
Tasmania and New South Wales, started applying the same laws to
indigenous and non-indigenous families much earlier but application
of general child welfare laws did nothing to slow the rate of
forced removal and in some places increased it, with courts
prepared to equate 'poverty' with 'neglect' and an indigenous
life-style with 'uncontrollable'.
The third Native Welfare Conference in 1951, at
which the newly appointed Federal Minister for Territories, Paul
Hasluck, advanced assimilation as the remedy to the inconsistent
policies which made a mockery of Australia's attempt to promote
human rights internationally, did nothing to stem the removals.
Indeed, States began to widen the scope of their removal policies
and in the 1950s and 1960s children were being removed not just for
alleged neglect, but to attend school in distant places, receive
medical treatment and to be adopted out at birth. To alleviate the
pressure on State institutions and to facilitate a more rapid
assimilation, many children were placed with white foster parents.
In 1989 Coral Edwards and Peter Read estimated that at the time of
writing there were 100 000 people who were either themselves
removed, or are descendants of people removed, from their
Aboriginal families.(8)
As more voices drew attention to the meagre
achievements of the assimilation policy, the denial of civil rights
that it entailed and the poor international image it gave
Australia, the Commonwealth Government began to reform the system
within its own jurisdiction. In the early 1960s it lifted
restrictions on eligibility for benefits, extending the federal
franchise, and removing various legal disabilities. The States
found themselves under pressure to follow suit and most
discriminatory State legislation was soon repealed.
1967 Referendum and a New Beginning
Throughout the period of assimilation the
administration of Aboriginal Affairs was regarded primarily as a
State responsibility. Although the Commonwealth had been empowered
to legislate for the protection of Aborigines in the Northern
Territory after South Australia handed over the Territory to the
Commonwealth Government in 1911, it was only after the 1967
Constitutional referendum and the amendments to sections 51 and 127
of the Constitution, that the Commonwealth was free to accept wider
responsibility for the Aboriginal people.(9) The constitutional
amendments removed the barrier to the Commonwealth Parliament
making special laws in relation to the Aboriginal 'race' and
offered successive governments the head of power to enact a vast
body of legislation intended to benefit indigenous people.(10) The
amendments did not, however, as has since been widely believed,
guarantee Aboriginal voting rights (this right had been clarified
in 1962), confer citizenship rights on Aboriginal people (in theory
they had never lost these) or grant award wages to Aboriginal
people in the pastoral industry (this did not happen until 1968 and
was the result of an unrelated process linked to a successful
action in the Conciliation and Arbitration Commission by the North
Australia Workers Union in 1965)(11). It did not offer Aboriginal
people and Aboriginal rights any constitutional recognition. Nor
did it give the Commonwealth Government exclusive responsibility
for Aboriginal Affairs, or even any explicit responsibility in the
area (had such responsibility been sought, the State Governments
would almost certainly have opposed the proposal). It is also
arguable that the Government could have set up an Office or
Department of Aboriginal Affairs and to initiated programs to
address Aboriginal needs without the constitutional amendment, just
as the Commonwealth has set up Departments of Education and Health,
when primary constitutional responsibility in these areas rests
with the States.
Indeed, for the first five years following the
referendum, there was a degree of Aboriginal frustration at the
lack of Federal Government action. Prime Minister Holt established
a Commonwealth Council for Aboriginal Affairs, under the
chairmanship of Dr. H.C. Coombs, and set up an Office of
Aboriginal Affairs within his own Department. Mr Holt's successor,
Mr Gorton, appointed Mr Wentworth Minister-in-Charge of Aboriginal
Affairs, but did not appear interested in stimulating Commonwealth
activity in the area of Aboriginal Affairs. According to Dr. H.C.
Coombs:
Gorton's genuine interest in social reform did
not extend to Aborigines. Indeed it could be said that he was
frankly not interested and could see no good reason for special
privileges for Aborigines or for programs directed specifically at
their needs. ... He quickly made it clear that he did not, even
when Wentworth wished it, want to deal with the council. It would
not be a great exaggeration to say that having agreed to
Wentworth's request for a $10m budget allocation he believed he had
done all that was necessary.(12)
In his address at the Conference of Commonwealth
and State Ministers responsible for Aboriginal Affairs at
Parliament House in Melbourne on 12 July 1968, Mr Gorton
said:
I believe that the Minister and the Council, in
their relations with the States, should seek to discharge three
main functions:
1. To allocate funds from the Commonwealth to
the State for Aboriginal advancement, using State machinery to use
these funds for an agreed purpose to the greatest possible
extent.
2. To gather information regarding Aboriginal
matters (especially welfare) and to act as a clearing house for
such information both as between the various States and as between
States and Commonwealth.
3. Where appropriate to assist the States in
coordination of their policy and in setting the general direction
of the Australian approach to Aboriginal advancement.
We propose to give the fullest cooperation to
the States, and I am sure we will get the fullest cooperation in
return.
The lives of Aboriginal people remained
primarily in State hands. In 1972 the McMahon Government announced
a policy which recognised the rights of individual Aboriginals to
effective choice about the degrees to which, and the pace at which,
they might come to identify themselves with the wider society and
which aimed to encourage Aboriginals 'increasingly to manage their
own affairs-as individuals, as groups, and as communities at the
local level'. There were, however, few actions to match the
rhetoric. Prime Minister McMahon's Aboriginal Affairs Minister,
Peter Howson, proposed a new general purpose lease for Aborigines,
but these leases would be very different from an acknowledgment of
land rights, would be conditional upon Aboriginal peoples'
'intention and ability to make reasonable economic and social use
of the land' and would 'exclude all mineral and forest
rights'.(13)
Aboriginal frustration at the general lack of
federal government action in the five years following the
referendum and the McMahon Government's attitude to land rights
culminated in the raising, on 26 January 1972, of a 'Tent Embassy'
on the lawns in front of Parliament House in Canberra. The tents
were re-erected after being torn down by police on 20 July 1972
and, after a violent clash with police, on 23 July 1972 and on 30
July a demonstration of approximately 1500 people prevented the
tents being removed again on that day.(14) A flag designed the year
before by Aboriginal artist Harold Thomas (and flown on 12 July
1971, National Aborigines' Day, in Adelaide's Victoria Square) was
flown at the Tent Embassy and this flag soon became the focus for
Aboriginal land rights aspirations for which it had been
intended.(15)
Although the short term political significance
of the 1967 referendum may be questioned, its long term symbolic
significance cannot be, and although the event may have become
distorted by myths, it has proved to be a very useful marker of
change, and as Andrew Markus observes, 'markers are so difficult to
find on the field of desolation that is the history of
Aboriginal-white relations'.(16) Indeed, the referendum has come to
act as a form of historical shorthand for a decade of change in the
area of Aboriginal Affairs, a decade which began in the early 1960s
and ended in the early 1970s.
The Early 1970s and the Concept of
'Self-determination' and 'Self management'.
It was not till Labor won office in December
1972 that the term 'self-determination' was introduced and the
Federal Government was able to successfully project itself as
totally reversing the previous 'assimilation' policy.(17) Mr
Whitlam declared that his government's policy would 'restore to the
Aboriginal people of Australia their lost power of
self-determination in economic, social and political affairs'. The
four main developments which came to be associated with this
commitment were legislation to enable Aboriginal communities to
incorporate for the conduct of their own affairs, the establishment
of the National Aboriginal Consultative Committee consisting of 41
elected representatives, the establishment of the Aboriginal Land
Rights Commission and an increased level of spending on programs
specifically directed to Aborigines through the newly created
Department of Aboriginal Affairs. The first two of the above
developments were seen to evidence an intention to involve
Aboriginal people in the running of Aboriginal affairs at all
levels. The third and fourth developments were seen as evidence of
commitment to overcome Aboriginal economic deprivation. Both the
Aboriginal involvement and the 'equality of opportunity' sides to
the concept of 'self-determination' are evident in a statement made
by the then Minister for Aboriginal Affairs, Senator Cavanagh, in
1974:
Our aim is, quite simply, both to remove the
disadvantages generally faced by Aboriginal Australians in the
fields of housing, health, education, job training and employment
opportunities, and to make it possible for Aboriginal communities
and individuals to develop as they wish within the overall
Australian Society. In all these fields, the importance of
Aboriginal involvement and identity is paramount.(18)
When the Liberal-National Country Party
coalition came to office in 1975, 'self-determination' was dropped
from the Government's vocabulary. The policies which the Australian
Labor Party (ALP) had grouped within the concept of
'self-determination' were given different labels. Aboriginal
involvement in their own affairs was now called 'self-management'
and the economic means by which Aboriginal people would have the
opportunity to make decisions about their lives was called
'self-sufficiency'. Land rights and additional funds were presented
not as part of the greater issue of 'self-determination' but as
separate issues. The change in terminology reflected not so much a
change in policy as a change in underlying philosophy. The L-NCP
policy stressed the responsibility for successful and efficient
administration that was to go with Aboriginal involvement, while
seeing a limit to the Commonwealth's own responsibility in areas
such as land rights. Although the new Coalition government passed
the Aboriginal Land Rights (Northern Territory) Act 1976,
essentially in the form which the previous Labor Government had
prepared the legislation, it did not see it as a manifestation of
the principle of self-determination and did not see it, as the
previous Labor Government had, as a stepping stone to nation-wide
legislation.
The Late 1970s and Early 1980s-the Concept of a
Treaty or 'Makarrata'.
The realisation that the meaning of
self-determination could vary with governments and that the spirit
of the Aboriginal Land Rights (Northern Territory) Act 1976 was not
going to be translated into nation-wide legislation led to a
campaign for a more basic recognition of Aboriginal rights. The
campaign first captured public attention in April 1979 following a
call by the National Aboriginal Conference for the Federal
Government to negotiate a 'treaty of commitment' between
representatives of Aboriginal Australians and the Commonwealth. The
Conference began speaking of a 'Makarrata', a term taken from a
north-eastern Arnhem Land language, where it means the end of a
conflict and the resumption of normal relations between
communities. The Federal Government was prepared to discuss the
concept of an agreement, but ruled out a treaty because of its
connotations of separate nations within Australia.(19) There may
have also been concern that a treaty implied massive group
compensation. Indeed, the Victorian Parliament's Social Development
Committee in Recommendation 4 of its 1982 Report upon Inquiry
into Compensation for Dispossession and Dispersal of the Aboriginal
People accepted 'that Aboriginal people as a whole have
suffered or been disadvantaged as the result of dispossession and
dispersal' and recommended 'that all Aboriginal people be eligible
for compensation'. (20)
As most Aboriginal activists were focused on
immediate political goals such as land rights, much of the work of
publicising and promoting the concept of a treaty was taken on by
the Aboriginal Treaty Committee, a non-Aboriginal organisation of
prominent citizens including Dr H.C. Coombs and the poet Judith
Wright. This committee was convinced that without a treaty or
similar instrument, Acts of Parliament would be too subject to the
winds of political change. It proposed that the treaty, covenant or
convention include provisions relating to:
(i) the protection of Aboriginal identity,
languages, law and culture;
(ii) the recognition and restoration of rights
to land by applying, throughout Australia, the recommendations of
the Woodward Commission;
(iii) the conditions governing mining and
exploitation of other natural resources on Aboriginal land;
(iv) compensation to Aboriginal Australians for
the loss of and damage to traditional lands and to their
traditional way of life;
(v) the right of Aboriginal Australians to
control their own affairs and to establish their own associations
for this purpose.
The Aboriginal Treaty Committee succeeded in
having the treaty question referred to the Senate Standing
Committee on Constitutional and Legal Affairs which reported in
1983. In its report, Two Hundred Years Later, the Senate
Committee argued that past treaties made with indigenous
populations in former British colonies were not very useful 'as
precedents for a compact between Aborigines and the Commonwealth'
as they were 'concluded at a time when the term treaty did not
possess so fixed a meaning in international law as it does today',
that is as 'an internationally recognised agreement between two
nations'. The Committee further argued that the rights which
indigenous people now had in countries such as New Zealand, the US
and Canada, had come not from the treaties but from the domestic
law applying to everyone within the nation's territorial
boundaries. The Committee considered using the Aboriginal word
'Makarrata', but as it was a word peculiar to one Aboriginal
linguistic group preferred to use the word 'compact'. It concluded
that although at the time of settlement sovereignty may have
resided in the Aboriginal people:
as a legal proposition, sovereignty is not now
vested in the Aboriginal peoples except in so far as they share in
the common sovereignty of all peoples of the Commonwealth of
Australia. In particular, they are not a sovereign entity under our
present law so that they can enter into a treaty with the
Commonwealth. Nevertheless, the Committee is of the view that if it
is recognised that sovereignty did inhere in the Aboriginal people
in a way not comprehended by those who applied the terra
nullius doctrine at the time of occupation and settlement,
then certain consequences flow which are proper to be dealt with in
a compact between the descendants of those Aboriginal peoples and
other Australians.(21)
The Committee advised that its 'preferred method
of legal implementation of a compact' between the Aboriginal
population and the Commonwealth would be a referendum to amend the
Constitution.(22) There would first have to be an education program
to familiarise the Aboriginal and non-Aboriginal community alike
with the idea of, and proposed substance of, the compact.(23) The
1988 bicentennial year was 'consistently suggested by many groups
as a target date', but the Committee gained the impression that if
a compact were to be decided upon, the education process might take
somewhat longer.(24)
The Senate Committee's report did not
immediately lead to any new treaty initiatives and the Aboriginal
Treaty Committee, finding a lack of political will to implement a
treaty, ceased its activities in February 1984.(25)
The Mid
1980s and the Return of the Concept of 'Self-determination'
Progress towards a 'treaty' may have reached an
impasse in 1983, but with the ALP winning office that year,
'self-determination' returned to the Commonwealth Government's
vocabulary and 'self-sufficiency' was dropped. In his major speech
to the House of Representatives the then Minister for Aboriginal
Affairs, Mr Holding, declared:
This Government...looks to achieve further
progress for the Aboriginal and Torres Strait Islander people
through the two principles of consultation and self-determination,
that is, with the involvement of the Aboriginal people in the whole
process.(26)
Similarly, in the ALP's 1982, 1984 and 1986
platforms, support is pledged to 'the policy of self-determination'
and in its April 1987 paper entitled Achievements in Aboriginal
Affairs 1983-84 to 1986-87, the Government cited the
establishment of incorporated Aboriginal controlled organisations
as a measure of success of the policy of 'self-determination'.
The Hawke Government's concept of
self-determination, however, did not differ greatly from the
previous Government's concept of 'self-management' and did not
carry any of the connotations carried by the term
'self-determination' as used in International Law. As Mr Richard
Chisholm, a Senior Lecturer in law at the University of NSW
suggested:
While changes in Departmental policy represent a
notable advance and a significant break with the past, it is still
unclear whether they embody a real commitment to Aboriginal
self-determination as distinct from a policy of multiculturalism
that could equally apply to other racial or ethnic groups.
Self-determination, which would enable
Aboriginal people to control their destiny and adapt their laws,
culture and traditions, is essential to their continuation as a
viable and identifiable race. Multiculturalism which acknowledges
differences between different communities is not enough.(27)
Many indigenous activists, disappointed among
other things by the Government's retreat in March 1996 from their
pursuit of a system of national land rights, sought to link the
domestic use and international meaning of the term. For example,
Paul Coe, the then Chair of the National Aboriginal and Islander
Legal Service Secretariat, argued in a United Nations Week Speech,
October 1986, that international law recognises the Aboriginal
people's statehood and that the Commonwealth of Australia must
recognise 'the right to self-determination of the nation of the
Aboriginal people'.(28) Shane Houston, the Coordinator of the
National Aboriginal and Islander Health organisations in a speech
given at the 'Self-Determination Indigenous People Speak Regional
Forum', 29 June 1986, insisted that:
Despite oppression and attempts at
indoctrination in colonialists' schools, our inherent belief that
the members of our communities collectively have the right to rule,
that an individual's responsibility and right is to protect himself
by guarding this collective right, remains.(29)
Professor Erica Irene A. Daes, Chair of the
United Nations Working Group on Indigenous Populations, made it
clear that she believed there was a general Aboriginal aspiration
for self-determination and that by this they meant having control
over their land, their laws and all aspects of their lives.
Consequentially she recommended that:
the Aboriginal and Islander people be given
self-government over their local and internal affairs. While the
exact powers and functions of such self-governments should be the
subject of negotiations between the parties, the minimum goal
should be powers sufficient for the protection of the group's
collective right to existence and for the preservation of their
identities. To this end, a secure financial basis must be created
for the self-governments, preferably through the establishment of
rights to land and resources, taxation powers and, when and if
these are insufficient, the granting of lump sums for their free
use.(30)
The term 'self-determination', however, ended up
being the main stumbling block to bi-partisan support for a
resolution which church leaders had proposed parliamentarians pass
as their first act in the new Federal Parliament House. The
resolution in its final form read:
That the House of Representatives/Senate:
1. acknowledge that:
(a) Australia was occupied by Aborigines and
Torres Strait Islanders who had settled for thousands of years
before British settlement at Sydney Cove on 26 January 1788.
(b) Aborigines and Torres Strait Islanders
suffered dispossession and dispersal upon acquisition of their
traditional lands by the British Crown; and
(c) Aborigines and Torres Strait Islanders were
denied full citizenship rights of the Commonwealth of Australia
prior to the 1967 Referendum;
2. affirms:
(a) the importance of Aboriginal and Torres
Strait Islander culture and heritage: and
(b) the entitlement of Aborigines and Torres
Strait Islanders to self-management and self-determination subject
to the Constitution and the Laws of the Commonwealth of Australia;
and
3. considers it desirable that the Commonwealth
further promote reconciliation with Aboriginal and Torres Strait
Islander citizens providing recognition of their special place in
the Commonwealth of Australia.(31)
Although this resolution had already been
modified to accommodate Opposition concerns (e.g. references to the
legal recognition of land rights and to the desirability of a
compact were dropped) the joint party meeting of the Opposition on
the morning of the debate endorsed supporting the resolution only
if the entitlement of self-determination already qualified by the
words 'subject to the Constitution and the laws of the
Commonwealth' were further qualified by the words 'in common with
all other Australians'. The Social activist Father Frank Brennan
suggested:
At best, the proposed amendment was ambiguous
suggesting that the entitlement to self-determination was universal
but exercisable discretely by separate groups. At worst, it was
ruthlessly assimilationist suggesting that self-determination could
be exercised only collectively by all Australians...(32)
The amendment was not accepted and the
Opposition did not support the resolution. The Government continued
to use the term but avoided using it in international fora(33) and
domestically always appeared to try to link it with
'self-management'. Thus the preamble to the 1989 Bill which
established the Aboriginal and Torres Strait Islander Commission
(ATSIC), a body which was to combine the representative and
consultative functions of the earlier NACC and NAC, with the budget
and program responsibilities of the Department of Aboriginal
Affairs, declared the new body's objectives to be
'self-determination and self-management for the Aboriginal and
Torres Strait Islander peoples within the Australian nation ...'
and the Commonwealth Government's 1991 Budget Related Paper No.7
stated:
The Aboriginal and Torres Strait Islander
Commission (ATSIC) is the centre-piece of the Government's policy
of greater self-management and self-determination for Aboriginal
and Torres Strait Islander people.(34)
The Government's attempt to appear supportive of
'self-determination' while containing it within the parameters of
'self-management', led the House of Representative Standing
Committee on Aboriginal Affairs to note in 1990 that 'at times
Aboriginal people and governments have talked past each other
because they have used terminology loosely'.(35)
PART II: The Next 10 years.
The Late 1980s and the Concept of a 'Compact'
In the late 1980s, while the debate over
self-determination gathered pace, the prospect of a treaty, a
prospect which had receded from the political scene in 1984,
returned-sometimes under the alternate name of 'compact'. In
September 1987 the then Prime Minister, Mr Hawke, who had been
heavily lobbied by people such as the Aboriginal poet Kevin Gilbert
and Mr Justice Michael Kirby, raised the possibility of a 'compact'
between the Aboriginal and non-Aboriginal people. Mr Howard, the
then Leader of the Opposition, rejected the idea claiming: 'There
is no way the Australian people will ever accept that in some way
we are two nations within one-nor should they'.(36)
On 12 June 1988, however, Mr Hawke effectively
committed his government to concluding a compact by 1990. At the
Barunga festival in the Northern Territory Galarrwuy Yunupingu,
chair of the Northern Land Council and Wenten Rubuntja, chair of
the Central Land Council, presented Mr Hawke with a petition framed
with paintings done by elders of the Western Desert and Arnhem Land
people. 'The Barunga Statement' read as follows:
We, the indigenous owners and occupiers of
Australia, call on the Australian Government and people to
recognise our rights:
To self-determination and self-management,
including the freedom to pursue our own economic, social, religious
and cultural development;
To permanent control and enjoyment of our
ancestral lands;
To compensation for the loss of use of our
lands, there having been no extinction of original title;
To protection of and control of access to our
sacred sites, sacred objects, artefacts, designs, knowledge and
works of art;
To the return of the remains of our ancestors
for burial in accordance with our traditions;
To respect for and promotion of our Aboriginal
identity, including the cultural, linguistic, religious and
historical aspects, and including the right to be educated in our
own languages and in our own culture and history;
In accordance with the Universal Declaration of
Human Rights, the International Covenant on Economic, Social and
Cultural Rights, the International Covenant on Civil and Political
Rights, and the International Convention on the Elimination of all
forms of Racial Discrimination, Rights to Life, Liberty, Security
of Person, Food, Clothing, Housing, Medical Care, Education and
Employment Opportunities, necessary Social Services and other basic
rights.
We call on the Commonwealth to pass laws
providing:
A national elected Aboriginal and Islander
organisation to oversee Aboriginal and Islander affairs;
A national system of land rights;
A police and justice system which recognises our
customary laws and frees us from discrimination and any activity
which may threaten our identity or security, interfere (sic) with
our freedom of expression or association, or otherwise prevent
(sic) our full enjoyment and exercise of universally-recognised
human rights and fundamental freedoms.
The Prime Minister was quoted as agreeing to
five proposals:
Firstly, that there shall be a treaty negotiated
between the Aboriginal people and the Government on behalf of all
the people of Australia.
Secondly, that many Aboriginal people should
decide what it is you want to see in that treaty.
The third step is that I have agreed that we
should provide you with assistance to establish those consultation
processes. In particular, that there should be a committee of seven
of your traditional owners who will have the responsibility for
organising those consultations with a view to organising an
Australia-wide convention, which will represent the culmination of
your own negotiations.
Fourthly, that when you have conducted these
processes of consultations that we as a Government should then be
prepared to receive and to consider the results of your thinking
and your consultation.
And fifthly, we agree that these processes
should start before the end of this year, and that we would expect
and hope and work for the conclusion of such a treaty before the
end of the life of this Parliament.(37)
There ensued much debate over how the process
should go forward. Shirley McPherson, chair of the Aboriginal
Development Commission, called for a treaty to be embodied in the
Constitution.(38) Professor James Crawford of the University of
Sydney said he believed the treaty would be nothing more than a
public relations exercise unless the issue of Aboriginal public law
was addressed and the question of who represents the Aborigines
settled.(39) In his Boyer Lecture on ABC radio in 1988 Dr Coombs
suggested that in the absence of a recognised Aboriginal
organisation with the authority to negotiate on behalf of the
Aboriginal people, the National Coalition of Aboriginal
Organisations (NCAO) could organise an Australia-wide convention to
which all Aboriginals and their organisations could be invited, and
argued that to be effective a treaty would have to require
that:
- the validity of Aboriginal title to their
traditional lands be recognised by the Australian legal system;
- exclusive legislative and financial
responsibility for Aboriginal matters be in the power of the
Commonwealth Parliament;
- the property rights of non-Aboriginal citizens
at the time of the negotiation of the treaty be protected against
Aboriginal claim;
- a tribunal constituted on a basis agreed by
the Commonwealth and a representative Aboriginal Convention be
established to supervise and to act as arbitrator in negotiations
leading to a treaty, to act as interpreter of the principles of the
treaty and to advise on its implementation.(40)
In February 1989 the Aboriginal Law Centre at
the University of New South Wales in consultation with the
International Law Association, the NCAO and the National Aboriginal
and Islander Legal Services Secretariat (NAILSS) hosted a seminar
on 'Aboriginal People and Treaties' at the Law Centre. One
contributor, the NCAO chair Geoff Clark, saw land rights as being
crucial to the treaty issue, considered the working out of a
consultation process a prerequisite to treaty negotiations and
believed that there should be international monitoring-'A UN umpire
if you like'.(41) Another contributor, Michael Mansell of the
Tasmanian Aboriginal Centre was reported as posing five options for
a treaty.(42) Four of these had been outlined in the Senate
Committee's report Two Hundred Years Later... and could be
negotiated within the Australian political context. The fifth
option and the one favoured by Mr Mansell would recognise
Aboriginal people as a separate nation:
Aboriginal people ought not to sell ourselves
short by perceiving ourselves in terms of a unit of Australian
society-an ethnic group or a minority-who are just getting a hard
time.
We are in fact a nation of people and we ought
to stand up and acknowledge it. If this is the case, then any
agreement reached between Aborigines and Australia takes on a
different status. And, it is not a status capable of being
unilaterally enforced or not enforced by a white government as has
been the case in New Zealand and the United States. It means it
comes under the purview of international law.
At meetings in late 1988 and early 1989 the
Prime Minister and the Minister for Aboriginal Affairs met with
representatives of the NCAO to discuss how the compact
consultations might be organised. The consultations, however,
failed to get off the ground; the reasons included the lack of a
representative Aboriginal organisation, the failure of the
Government to allocate NCAO the funds budgeted for the
consultations, the opposition of the Coalition parties and the
preoccupation of the Minister with setting up the Aboriginal and
Torres Strait Islander Commission.
Talk of a treaty, however, persisted. On 2
December 1989 a full page advertisement signed by prominent
Australians, including Dr Coombs, appeared in the metropolitan
press.(43) It was headed: 'Support the Barunga Statement and the
Prime Minister's reply to it: A treaty with Aborigines in 1990'.
The signatories called for political and financial support:
Only if popular support is strong and lasting in
the months ahead will the Government keep its promise and the
Aborigines win the recognition for which they have fought for 200
years.
The advertisement claimed the funding which the
Government promised for consultations would not be adequate and
directed donations to the Aboriginal Law Centre at the University
of New South Wales for distribution to NCAO and NAILSS. Mr Hawke
himself revived the 'treaty' possibility in February 1990 during a
visit to New Zealand for the 150th anniversary of the signing of
the Waitangi treaty. He pledged his government would accelerate its
efforts to make a treaty with Australia's Aboriginal
population:
The simple position is that we will proceed with
the concept of a treaty within Australia. I believe that the total
Australian community, Aboriginal and non-Aboriginal, is going to be
well-served by the achievement of that treaty.
It's not something that's imposed, it's
something that emerges from, as far as possible, a coalescence of
the wishes and aspirations of the Aboriginal people and a
recognition by the non-Aboriginal community of the appropriateness
of such an outcome.(44)
Warwick Smith, then Opposition Spokesperson on
Aboriginal Affairs, argued, however, that it is impossible for a
nation to have a treaty with itself:
A treaty will create hostility within the
Australian community where it currently does not exist and will not
advance the material well-being of the Aboriginal people.(45)
1989/1990 and the Concept of
'Self-government'.
At the end of the 1980s a new term, widely used
in North America, enjoyed a brief period of use in Australia.
'Self-government' was employed to describe one of the mid-way
options between complete assimilation or complete separation.
Models ranged from the creation of an Aboriginal State with the
powers of other Australian States (it could be made up either of
the various Aboriginal lands around Australia and have its
parliament located in some central place such as Alice Springs or
of one or two large continuous territories in Central and Northern
Australia), to the recognition of traditional law, to
constitutional guarantees of land rights, site protection and
service delivery. (46)
In November 1991 a five member Legislation
Review Committee established by the Queensland Government produced
a discussion paper Towards Self-Government and reported
that:
Aboriginal and Torres Strait Islander
communities consulted by the committee had no doubt about the
survival of their rights. The committee was often asked why the
Queensland and commonwealth parliaments, and the Australian High
Court, must be the ultimate adjudicators of Aboriginal and Torres
Strait Islanders rights. The question is important because it
highlights a fundamental issue relevant to Aboriginal and Torres
Strait Islander self-government. Whatever the legal situation,
Aboriginal and Torres Strait Island people do not regard any powers
to govern which they exercise as being 'derivative', or originating
from any mainstream government.(47)
The committee proposed legislation which would
recognise the pre-existing rights of indigenous people to
self-government and which would enable Aboriginal and Islander
communities to opt, by referendum, to progressively assume
responsibility for a wide range of service till many have all the
powers of existing local authorities, many of the powers of state
administrations and some of the powers of the federal
government.
Professor Henry Reynolds presented the Fraser
Government's 1979 Norfolk Island Act as a possible model
for regional Aboriginal self-government. Although the Pitcairn
descendants on Norfolk Island had their claims to special rights
dismissed by the High Court of Australia in 1976, Parliament
recognised the 'special relationship of the [Pitcairn] descendants
with Norfolk Island and their desire to preserve their traditions
and culture'.(48) The move was supported by the Liberal minister of
territories, Robert Ellicott who argued that although the island
was 'part of Australia and will remain so, this does not require
[it] to be regulated by the same laws as regulate other parts of
Australia', by the National Party member Clarrie Miller who claimed
'it is generally accepted that Norfolk Island is quite unique in
most respects' and by the Labor Party's John Dawkins who
believed:
We cannot avoid the question of Norfolk Island
being part of Australia; yet at the same time we cannot be seen to
be preventing the people who have lived there for so long from
continuing to live in the way they have for so long. We are
determined to ensure that they are allowed to exercise a real sense
of self-government. (49)
If the small Norfolk Island community of about
1500 permanent residents could exercise the right to elect a
government with many of the powers of both federal and state
governments (education, health, taxation, immigration,
law-and-order and social welfare) so too, the argument went, could
numerous Aboriginal communities.
The Late 1980s/Early 1990s and the Concept of
Reconciliation
The word 'Reconciliation' had been introduced
into the debate in 1988 when 14 heads of Australian Christian
Churches issued a statement entitled 'Towards Reconciliation in
Australian Society'. That statement focused on the history of
Aboriginal-European contact and conflict, the place of Aborigines
in Australian society and the need for committed acts of
reconciliation. Although the Church leaders failed to get
Commonwealth parliamentarians to pass a motion in the first session
in the new Parliament House embracing 'reconciliation', the term
lived on. In August 1989 Father Frank Brennan and Professor James
Crawford delivered a joint paper to the Australian Legal Convention
in Sydney, calling for a 'charter of recognition' backed up by an
independent commission rather than a treaty. The Aboriginal
Recognition Commission would be modelled on the Australian Law
Reform Commission in that it would be chaired by a prominent
Australian, invite submissions, hold public hearings and publish
interim reports. It would hold a series of twelve annual meetings
before 1 January 2001, the anniversary of the first centenary of
Federation. The long-term aim of the Commission would be to present
a draft Charter for Aboriginal Recognition to Commonwealth and
State governments at a conference of Prime Minister and Premiers in
1999, allowing 18 months for debate leading up to a referendum to
approve the wording.(50)
By 1990 the Government appeared prepared to
embrace the concept, not necessarily as a first choice for the way
forward, but as the only choice left. The failure to achieve
bi-partisan support for either a 'treaty', a 'compact' or a
resolution backing the right of indigenous people to
self-determination, and an ambivalence in the general community
about what if anything should be included in a treaty,(51) had led
the Government to see some merit in a change of rhetorical
tack.
In January 1991 Robert Tickner, Minister for
Aboriginal Affairs, issued a discussion paper entitled
Aboriginal Reconciliation which proposed the establishment
by legislation of a Council for Aboriginal Reconciliation to
facilitate a process of reconciliation between Australia's
indigenous and wider communities. The Government's initiative was
supported by the Opposition and seemed to be endorsed in the report
of the Royal Commission into Aboriginal Deaths in Custody. The
Council for Aboriginal Reconciliation Bill 1991 was passed
in June 1991. On 25 December prominent Aboriginal and
non-Aboriginal people were appointed to a Council chaired by Mr
Patrick Dodson. The process of reconciliation was to be formally
concluded by 1 January 2001. The council was to consult widely to
determine whether the process would be advanced by a formal
'document of reconciliation' and, if so, make recommendations on
the nature of such a document.
Expectations of the process of reconciliation
varied enormously among advocates of Aboriginal rights. A former
head of the Department of Aboriginal Affairs and later chair of the
Arrernte Council of Central Australia, Charles Perkins, was
reported as calling the process a big lie and a sell out.(52) Bob
Weatherall, the chair of the self-titled 'Provisional Aboriginal
Government', called for a boycott of the Council's meeting.(53) The
council chair, Pat Dodson, said he would not have accepted the
position if he thought a treaty or 'instrument of reconciliation'
was not a possible outcome.(54) Lois O'Donoghue, chair of ATSIC and
a member of the Council for Aboriginal Reconciliation, in a speech
to mark the 25th Anniversary of the 1967 Constitutional referendum,
expressed the hope that the reconciliation process would produce
something more valuable than a treaty-a constitution which
specifically recognised indigenous Australians and their
rights.(55)
On the 10th December 1992 the then Prime
Minister, Mr Keating, in his so-called 'Redfern Speech', publicly
linked progress down the path to reconciliation with Australian
society coming to terms with the past:
And, as I say, the starting point might be to
recognise that the problem starts with us non-Aboriginal
Australians. It begins, I think, with that act of recognition.
Recognition that it was we who did the dispossessing. We took the
traditional lands and smashed the traditional way of life. We
brought the diseases. The alcohol. We committed the murders. We
took the children from their mothers. We practised discrimination
and exclusion. It was our ignorance and our prejudice. And our
failure to imagine these things being done to us. With some noble
exceptions, we failed to make the most basic human response and
enter into their hearts and minds. We failed to ask-how would I
feel if this were done to me? As a consequence, we failed to see
that what we were doing degraded all of us.
The Council for Aboriginal Reconciliation sought
to further stimulate public discussion with the publication in 1993
of eight 'key issue' papers.(56) Paper no. 4 suggested:
It is important to fully understand the recency
of the official exclusion and control of indigenous Australians.
Many now in their twenties went to separate schools, were not
counted in a census until 1971, and had their lives directed by
managers or welfare officials; many now in their thirties were also
kidnapped from their families and their links with their families
were destroyed for many years; and those now in their fifties lived
under harsh regimes-they were adults but had less rights than
non-indigenous children of the time.(57)
Paper no. 7 canvassed options for a document of
reconciliation. The non-statutory options included area-specific
protocols between various bodies, new inter-governmental
agreements, and a 'treaty'. Statutory options included legislative
recognition of indigenous rights (in areas from self-government to
customary law) and a statutory Bill of Rights. Constitutional
options included the insertion of a preamble acknowledging prior
indigenous ownership of the land, constitutional recognition of a
Bill of Rights, of specific indigenous rights and bodies, and or of
federal, state and territory government obligations to indigenous
people, the creation of reserved seats in Parliament, and replacing
s. 51(xxvi) of the Constitution (the 'race power' provision) with a
more positively worded provision which mentions 'Aboriginals and
Torres Strait Islanders'.
The Response to Mabo and Debate on a 'Social Justice
Package'.
In the two decades following the failure of the
applicants in the 1971 Northern Territory Supreme Court Case
Milirrpum v Nabalco to have the concept of terra
nullius overturned, most supporters of indigenous rights
turned from pursuing common law rights to struggling for statutory
land rights and/or a treaty. Most, but not all. In the 1980s some
Torres Strait Islanders, led by Eddie Mabo, pursued their common
law rights through the courts. On 3 June 1992, after 10 years of
litigation, the High Court decided that the common law recognises
that native title may survive the acquisition of sovereignty by a
colonising power. The Court found that native title did not arise
out of a grant from a government but was a pre-existing customary
ownership of land which has survived since pre-colonial times.
Indeed, the court implied that native title continued to exist
elsewhere in Australia, wherever it has not been extinguished by
governments and provided that the local Aboriginal and Torres
Strait Islander groups had maintained a relationship with their
traditional country based on customary law. The judgement offered
the recently established process of reconciliation a challenge and
an opportunity, and the Government's response ended up coming in
three phases.
The first phase of the Government's response was
the Native Title Act 1993, creating an opportunity for at
least some Aboriginal and Torres Strait Islander groups to receive
formal, legal recognition of their customary ownership of their
country.(58)
The second phase of the Government's response to
the decision followed indigenous people lobbying for establishment
of a land fund to help satisfy the land need of the dispossessed
indigenous people, who, because of dispossession, would rarely be
able to demonstrate the continuous connections to land required
under Native Title legislative guidelines. This led initially to
expansion of the land acquisition programs within ATSIC to include
the sub-component of native title, and then to the Federal
Government establishing a new land fund and Indigenous Land
Corporation to manage monies drawn down each year from the
fund.
The third phase in the Government's response was
to be a Social Justice Package. This package had been promised by
Prime Minister Keating in his second reading speech on the Native
Title Bill and in 1994 the Minister for Aboriginal and Torres
Strait Islander Affairs, Mr Tickner, told the 12th Session of the
UN Working Group on Indigenous Populations:
The social justice package presents Australia
with what is likely to be the last chance this decade to put a
policy framework in place to effectively address the human rights
of Aboriginal and Torres Strait Islander people as a necessary
commitment to the reconciliation process leading to the centenary
of Federation in 2001.(59)
ATSIC, the Council for Aboriginal Reconciliation
and the Aboriginal and Torres Strait Islander Social Justice
Commissioner coordinated a consultation process which reported
community calls for:(60)
-
- measures for recognition, protection, revival, maintenance and
development of Aboriginal and Torres Strait Islander cultural
heritage
-
- protection for 'intellectual property' such as creative designs
for artworks, designs, traditional songs and stories or traditional
medicines
-
- reviewing and strengthening existing laws for the protection of
sacred and significant sites and objects
-
- making a new effort to see what elements of customary laws
could be recognised within the general laws of Australia
-
- programs for increasing awareness, in the education system and
in the community generally, of indigenous cultures and
spirituality
-
- examining the possibility of recognising, in Australian law, a
form of communal title that better reflects Aboriginal and Torres
Strait Islander traditional attitudes to property
-
- measures to increase the participation of Aboriginal and Torres
Strait Islander peoples in Australian economic life
-
- recognition, including in the Australian Constitution, of the
special place and rights of indigenous peoples in Australian
society
-
- greater measures of self government for Aboriginal and Torres
Strait Islander communities
-
- regional agreements between indigenous peoples and governments
which seek to set out rights and benefits
-
- seeking stronger commitments to improving Aboriginal and Torres
Strait Islander access to, and equitable treatment in, all levels
of government program and service delivery
-
- making greater effort to seek formal agreements with States and
Territories, under the National Commitment to Improved Outcomes
in Program and Service Delivery for Aboriginal Peoples and Torres
Strait Islanders, in areas such as health, housing,
infrastructure, employment, business funding and land
management
-
- requesting the Commonwealth to impose specific requirements on
States and Territories that funds provided are used in ways that
adequately address the needs of indigenous peoples
-
- new measures to improve educational outcomes for indigenous
peoples
-
- implementing major recommendations arising from the recent
review of the Aboriginal Employment Development Policy, including
the expansion and enhancement of the CDEP, Community Economic
Initiatives and Business Funding Schemes
-
- ensuring that public health resources are equitably distributed
to meet the health needs of indigenous peoples
-
- measures to ensure that funds under the Commonwealth State
Housing Agreement are distributed equitably to meet housing needs
of indigenous peoples, and
-
- measures to ensure culturally appropriate law and justice
services.
In addition to this joint report, each body
prepared its own report. While all took a 'rights-based' approach
to social justice and canvassed possibilities for ensuring greater
indigenous political representation, each highlighted different
issues. The Social Justice Commissioner's report called for the
creation of an indigenous parliament. The ATSIC report
Recognition, Rights and Reform recommended a greater role
for the ATSIC chairperson in the existing federal parliamentary
system. The Reconciliation Council's report urged considering
dedicated indigenous seats in parliament. Five other Reconciliation
Council recommendations concerned 'displaced persons', with the
Commission recommending that the Commonwealth, State and Territory
governments:
formally recognise that the past practices of
forced removal of indigenous people from their families, their
land, their communities and their birthright connections to their
land were unacceptable and in breach of the human rights of the
people, their families and their communities.
provide funding to enable a program of detailed
research for such displaced people to seek to identify and link up
with their families and their origins.
identify the best means of delivering services
to displaced people to address the specific difficulties arising
from past government policies of removal.
seek to negotiate a possible settlement of
claims for perceived breaches of duties to people who were removed
from their families, their land, their communities and their
birthright connections to their land.
[if] unable to resolve these matters by
negotiation, the Commonwealth should fund a test case or cases.
The Mid
1990s and the Inquiry into the Separation of Indigenous
Children.
In the early 1990s policy makers became
increasingly aware that public ignorance concerning the removal of
Aboriginal children was hindering both the provision of help to the
victims of such removals and the reconciliation process in general.
Helping to raise awareness of the problem had been several
developments, including the Council for Aboriginal Reconciliation's
submission to the Social Justice Package inquiry, a campaign by the
Secretariat of National Aboriginal and Islander Child Care and the
NSW organisation Link-up, the revelation in the Royal Commission
into Aboriginal Deaths in Custody that nearly half of those who so
died had been separated in childhood from their natural families,
and a large 'Going Home Conference' in Darwin.
In 1995 the Federal Labor Government established
the National Inquiry into the Separation of Aboriginal and Torres
Strait Islander Children from Their Families and in April 1997 the
Human Rights and Equal Opportunity Commission presented its
completed report, Bringing them home, to the Coalition
Government, which had come to office in March 1996.
The Inquiry estimated that between 1910 and 1970
the number of indigenous children forcibly separated ranged from
about one in ten children to one in three, depending on time and
place, and that most indigenous families have been affected, in one
or more generations, by the forced removal of one or more children.
The majority of children removed were entirely separated from their
indigenous community, were taught that indigenous culture was
without value, were not allowed to use their language, suffered
physically harsh living conditions and experienced multiple
institutional and/or foster placements. Many were told they were
unwanted, rejected or that their parents were dead. Almost one in
ten boys and just over one in ten girls allege they were sexually
abused in children's institutions-and more allege such abuse in
foster placements. Extensive physical punishments were common.
Education in the institutions was directed at preparing the
children only for menial work. The Inquiry's report documents the
effects not only on the children at the time (more than half of
whom were removed during infancy) but also on those children later
in life, on their children, on the families from which they were
taken and on the foster carers when reunion is sought.
The Inquiry concluded that the forcible removal
of indigenous children was an act of genocide contrary to the
Convention on Genocide, ratified by Australia in 1949. This
Convention included within its definition of genocide 'forcibly
transferring children of [a] group to another group' with the
intention of destroying the group (regardless of the extent to
which that intention was achieved). It also concluded that even
before international human rights law developed in the 1940s, the
practice infringed the legal principles derived from the common law
that children should not be removed from their parents and parents
are the legal guardian of their children-unless a court, on
evidence proving removal is in the best interests of the child,
decides otherwise. Removal was taking place in WA (1905-1954), NT
(1911-1964), NSW (1915-1940), SA (1911-1923) and Queensland
(1897-1965) without a court order and in WA, NT, SA and Queensland
laws made the Protector or Protection Board the legal guardian of
Aboriginal children.
The Inquiry found that Australian Governments
have a responsibility to respond with:
-
- acknowledgment of the truth and an apology
-
- guarantees that these human rights won't be breached again
-
- returning what has been lost as much as possible (known as
restitution)
-
- rehabilitation, and
-
- compensation.
It was recommended that the wording of official
apologies be worked out with the assistance of ATSIC and
communicated with culturally appropriate publicity. To assist
people affected by forcible removal the Inquiry recommended that
the process of accessing personal and family records should be
easier, that there should be a Family Information Service in every
state and territory for indigenous people, that counselling and
support should be available through a comprehensive network of
indigenous family tracing and reunion services.
The Inquiry also recommended ways in which the
Australian Governments could effect compensation in line with 'The
Basic Principles and Guidelines on the right to reparation for
victims of gross violations of human rights and humanitarian law'
(the van Boven Principles) and in the light of different overseas
practices (e.g. the US Government offered monetary compensation to
Americans of Japanese ancestry who had been interned during the
Second World War and the Chilean Government is preparing to offer
monetary compensation to the victims of the violations of human
rights by the military dictatorship). The Inquiry recommended that
the Australian Government set up a National Compensation Fund, with
a board made up of indigenous and non-indigenous people, that
anyone who can prove unjustifiable removal receive a basic lump
sum, and that further compensation be awarded upon proof of
particular effects of the removal.
The
Late 1990's and a New Language
Following the election of the Howard Government
in 1996 and the appointment of Senator John Herron as Minister for
Aboriginal and Torres Strait Islander Affairs, Commonwealth
Government rhetoric changed in several respects. The Government
consciously dropped two terms which had been in use for most of the
previous decade.
The first term dropped was 'social justice'. The
Social Justice Package consultation process which the Keating
Government had embarked on to help structure the Government's third
tier response to the Mabo decision (after the Native Title
Act and the establishment of the Land Fund), was discontinued
and the previous Government's annual publication Social Justice
for Indigenous Australians became Commonwealth Programs
for Aboriginal and Torres Strait Islander Peoples and, in
1998, Addressing Priorities in Indigenous Affairs.
The second term dropped was
'self-determination'. On 25 August 1998 the Foreign Minister Mr
Downer was reported as declaring the Government objected to the use
of the term 'self-determination' in the Draft declaration on the
Rights of Indigenous People, and, would urge the United Nations to
replace the term with the words 'self-management' or
'self-empowerment'.(61) The reason given by Mr Downer was that the
Government did not want 'to see a separate country created for
indigenous Australians', but others argue the concept of
self-determination with which Australia has worked for decades and
which many other countries have supported for inclusion in the UN
declaration does not threaten territorial integrity.(62)
The Government's declared priorities now
included 'accountability', 'improving outcomes in key areas' and
'promoting economic independence'. Many of the Government's actions
during its first term in office, as well-intentioned as they may
have been, placed a strain on the relationship between the
Government and the indigenous community. Most notably:
-
- in April 1996 the Minister issued General Directions to ATSIC
requiring the appointment of a Special Auditor to make a
determination on whether a prospective grantee was 'not fit and
proper' to receive public money, but on 4 September 1996 the
Federal Court judged that the Minister's General Directions were
invalid. In that same month the Government also commissioned an
audit of the Aboriginal Legal Services, an action construed by some
as an more an attempt to compound public perception of
mismanagement than to facilitate greater accountability,(63) and
reversed its election position of favouring the election rather
than appointment of the ATSIC chairperson
-
- in the August 1996 Budget ATSIC's projected budget over the
next four years fell by $470 million from that which had been
projected by the previous government. Less was allocated in that
year than had been spent on indigenous programs in 1994-95. ATSIC
expenditure fell from $968.5 million-in 1995-96 to $894.1
million-in 1996-97 and this was not a result of the transfer of any
significant function to another portfolio area (indeed overall
indigenous specific expenditure fell dramatically in the 1996-97
financial year).(64) As the Minister also directed that expenditure
in some areas be quarantined, expenditure in some other areas fell
dramatically and some programs (e.g. The Community and Youth
Support Programme) had to be terminated altogether
-
- in the May 1997 Budget the Federal Government announced a
review of Abstudy raising concerns that the Government may seek to
replace it with Youth Allowance and that this may have an impact on
indigenous participation in education
-
- in October 1997 the Minister appointed barrister John Reeves to
review The Aboriginal Land Rights Act (Northern Territory)
1976-raising fears that the Act which most Aboriginal people view
as offering the benchmark in the area of land rights might be
watered down or handed to the Territory Government to
administer
-
- in November 1997 the Government did not reappoint Pat Dodson as
Chair of the Council of Reconciliation
-
- in April 1998 the Minister released a discussion paper entitled
Removing the Welfare Shackles, recommending establishing
Indigenous Business Australia ('the IBA') to take over the current
operations of the Commercial Development Corporation ('the CDC'),
amalgamating ATSIC's business programs with those of the current
CDC, transferring the ATSIC Housing Fund to the prosed IBA,
transferring the funds management activities of the Indigenous Land
Fund and the Aboriginal Benefit Reserve into the proposed IBA and
establishing what could loosely be called an 'indigenous bank'
-
- in January 1998 the Government abolished the position of
Aboriginal and Torres Strait Islander Social Justice
Commissioner
-
- in May 1998 the Government's budget provided for a reduction in
ATSIC's budget from $973.6 million-in 1997-98 to an estimated
$960.3 million-in 1998-99. Overall indigenous specific expenditure
would increase slightly from $1852.3 million-in 1997-98 to an
estimated $1878.0 million-in 1998-99, but after adjusting for CPI,
this actually represented a slight fall
-
- in July 1998 the Minister sought a special audit from ATSIC's
Office of Evaluation and Audit into ATSIC conferences, and
-
- finally, and perhaps most significantly of all, in July 1998
the Government passed, after much debate inside and outside
Parliament, its Native Title Amendment Bill, introduced in November
1997.(65)
The impact of all of the above on the process of
reconciliation was magnified by perceptions that the Howard
Government, in its first term in office, was not matching its
declared support of the concept of reconciliation with the language
required at crucial moments, for example, by not rising to the
rhetorical challenge posed by Pauline Hanson and her One Nation
Party, not finding the appropriate tone for a speech at the
Australian Reconciliation Convention in Melbourne (26 to 28 May
1997) marking the 30th anniversary of the 1967 referendum and by
not committing itself, as the Human Rights Commission had
recommend, to working with indigenous people on the appropriate
words for an official apology for past actions.
Nevertheless the Government's December 1997
official response to the Bringing them home Report was
accompanied by a $63 million package which included $2 million for
Australian Archives to index, copy and preserve thousands of files
so they are more readily accessible, nearly $6 million for further
development of indigenous family support and parenting programmes,
$16 million to the National Library for an oral history project, $9
million for culture and language maintenance programmes, more than
$11 million to establish a national network of family link-up
services, $16 million for 50 new counsellors to assist those
affected by past policies and for those going through the reunion
process and $17 million to expand the network of regional centres
for emotional and social wellbeing, giving counsellors professional
support and assistance.(66) The absence from this Government
response of a commitment to an apology represented, however, in the
opinion of the ATSIC Chair Gatjil Djerrkura:
a sorely missed opportunity to make a
substantial gesture of reconciliation. Its is also wrong to respond
to this matter as if it were a health problem rather than a social,
and highly symbolic, issue. . The report contained 54 principal
recommendations. Some contained several parts, making 83 proposals
in all. There are 62 specific issues for which the Commonwealth
could take a lead responsibility. It chose to act directly on a
mere handful. ... In contrast, the response to the report in the
broader community has been heartfelt and generous. Many people
agreed with us on the importance of acknowledging the past in order
to move forward.(67)
Part III: The Last Year
The 1998 Election and a New Commitment
Perhaps appreciating a perception that his
Government had failed in its first term to advance the process of
reconciliation (indeed, explicitly acknowledging that he had
overreacted at the 1997 Reconciliation Convention), on the evening
of his re-election on the 3 October 1998, Prime Minister Howard
declared reconciliation a priority for his Government's second
term:
And I also want to commit myself very genuinely
to the cause of true reconciliation with the Aboriginal people of
Australia by the centenary of Federation. We may differ and debate
about the best way of achieving reconciliation, but I think all
Australians are united in a determination to achieve it.(68)
Mr Howard elevated reconciliation's status to
that of a portfolio, which he assigned to the Immigration and
Ethnic Affairs Minister, Philip Ruddock, who he then brought into
Cabinet. In November 1998 he gave the Council for Aboriginal
Reconciliation the extra $2.4 million it had requested to assist
its work and gave his personal backing to drawing up, by May 2000,
a historic document 'that acknowledges the historical truths of
this country, the prior occupation of it by the indigenous people;
it must acknowledge injustices'.(69)
The Prime Minister's post-election embracing of
the concept of reconciliation was not, however, seen to be
unqualified. He followed his re-election night commitment with a
rejection of that which he termed the negative, mean-spirited,
black armband view of history,(70) and he followed his subsequent
declaration of support for a document of reconciliation with a
declaration that he did not favour including in such a document an
apology for past wrongs, nor of adding a preamble to the
Constitution acknowledging indigenous rights.(71) Since the 1998
election the Minister for Aboriginal Affairs and Torres Strait
Islander Affairs, Senator Herron, has also restated his opposition
to an apology, describing it as 'an attempt at blackmail'.(72) The
Deputy Prime Minister and leader of the National Party, Mr Tim
Fischer, who in the course of the October election described land
councils as 'blood-sucking bureaucracies', was reported in
mid-December 1998 as calling for 'a properly balanced document',
but not an official Government apology or a treaty.(73) By late
December Mr Howard was reported as appending a commitment to 'try
to reach an understanding with Aborigines' with the suggestion
that:
there are some people in the indigenous
community and there are some who support them in the broader
community, who will never be satisfied, no matter what is
acknowledged and what is agreed. They will always keep asking for a
greater repudiation of the past and a greater sort of downgrading
of the quality of the unity of the entire Australian
community.(74)
A broader concept of that which reconciliation
may imply does appear, however, to have been entertained by Mr
Ruddock, the newly appointed Minister to assist the Prime Minister
with the issue. In one interview he suggested 'an apology is often
the basis upon which you are able to move forward'(75) and in
another said:
I'm going to take all of the ideas that come
through the reconciliation process to my colleagues. If you're
involved in a process that's designed to achieve an effective
reconciliation-one in which we all move forward as a united people,
all Australians, accepting our cultural differences, accepting our
history, accepting our past, then the process needs to be a real
process in which all of the ideas are looked at. And that's why
I've said we need to be involved in this process with a willingness
to involve ourselves in lateral thinking to find ways through the
impasses of the past.(76)
Many outside the Federal Government have indeed
been urging the Government to entertain a broader concept of that
which reconciliation involves. Thus, Evelyn Scott, Chair of the
Council for Aboriginal Reconciliation, spoke of the need for a
Declaration of Reconciliation which would include, among other
things, acknowledgment of the history of indigenous dispossession
from land and families and a commitment to work toward the fuller
participation of indigenous peoples in the economic, political,
cultural and social life of the nation', along with constitutional
reforms, new Commonwealth and State legislation to recognise and
protect the documents and renewed commitments to address Indigenous
disadvantage.(77) Similarly, Gustav Nossal, the Deputy Chair of the
Council for Aboriginal Reconciliation, welcomed the Prime
Minister's renewed commitment to reconciliation but suggested:
Reconciliation has two faces: a symbolic and an
action-oriented one.
The symbolic side is enormously important. There
must be a respect for indigenous cultural identity and spiritual
beliefs; an acknowledgment of the tragic history since white
settlement, including dispossession from land and family, loss of
identity, heritage, culture and language, and poor treatment by a
variety of institutions; and a recognition of indigenous rights
stemming from the unique status of Aborigines and Torres Strait
Islanders as the first Australians, the original occupants and
custodians of this land.
Equally, action plans leading to greater social
justice for indigenous Australians are essential. There must be a
renewed effort to address the serious disadvantage of indigenous
people in all key sectors, including health, education, housing ,
employment and community justice. There must also be a commitment
to work towards the fuller participation of indigenous people in
the economic, politic, cultural and social life of the
nation.(78)
David Buckingham, executive director of the
Business Council of Australia, speaking at the round table for
community leaders on 25 October 1998, argued that reconciliation
was not just a matter of health, education and services, but
ultimately about 'indigenous rights' and until the community
embraced the concept of indigenous rights, there would be a clash
of expectations and the reconciliation process, in which a document
would be but one step, would be incomplete.(79) Similarly Fred
Chaney suggested that:
The task of reconciliation is more fundamental
than achieving more equal social outcomes for Aborigines. There is
a deeper issue that so far we have been unwilling to face. What we
fail to acknowledge is that Aboriginal involvement in post-European
settlement was involuntary and remains involuntary ...[but]...There
is powerful resistance to any notion of inherent rights flowing
from Aboriginality...That is the tough core debate we have yet to
have and must have. Long-term reconciliation means coming out of
that debate with a common position, a common acceptance of the
legal and moral basis on which we live together and would live and
work together in the future.(80)
Gatjil Djerkura, the Chair of ATSIC, spoke
against having a document that does not address indigenous rights,
existence, cultural heritage, land, customary law, and
self-determination,(81) and in his introduction to the 1997-98
ATSIC Annual report, he observed:
Informed members of the community recognise and
appreciate the value of symbolic gestures. They have taken them to
heart, embracing a National Sorry Day, signing thousands of Sorry
Books, and rallying in support of native title.
Governments cannot legislate for real
reconciliation, but they can foster it.
The leader of the Federal Opposition, Kim
Beazley, responded to Mr Howard's new commitment by saying it would
be tested by the Government's response to the native-title
legislation which was before the Western Australian Parliament and
would need federal parliamentary endorsement, and by Mr Howard's
capacity to handle the issue of 'making atonement for the stolen
generation'.(82) Similarly, the former Aboriginal and Torres Strait
Social Justice Commissioner, Mick Dodson, described an apology to
the stolen generation as central to reconciliation, and included in
the reconciliation agenda a settlement of land questions (beyond
that offered by the Government's Native Title Amendment
legislation)(83) and a narrowing of the socio-economic gap ('we
can't say we have reconciliation when our life expectancy is 20
years less than other Australians and our infant mortality is four
or five times higher').(84) The chair of the Council for Aboriginal
Reconciliation Council, Evelyn Scott, also declared these same two
issues as central to Reconciliation.(85) Peter Yu, the executive
director of the Kimberley Land Council, was reported as saying 'You
can't expect us to open our hearts on reconciliation while we're
being kicked in the guts'(86) and argued that the following
principles are essential to a Document of Reconciliation:
-
- constitutional recognition and protection of Indigenous
rights
-
- recognition of traditional customary law within the Australian
legal system
-
- the development of an agreed document on Australia's
history
-
- symbolic protocols recognising the special status of Indigenous
People within the Australian nation
-
- the establishment of a substantial long-term capital fund that
compensates Indigenous People for past dispossession and provides
economic security, and
-
- the establishment of a national funding formula that delivers
community infrastructure and services on an equitable
basis.(87)
Aboriginal activists Murrandoo Yanner and
Charles Perkins, speaking at a 'World Indigenous Pathways'
conference in Toowoomba on 1 December, called for a boycott of the
Sydney Olympics 'unless the Howard Government addressed
reconciliation' and Perkins called on the Prime Minister to make a
formal apology. 'Without this apology there can be no
reconciliation'.(88)
Five Aboriginal leaders sympathetic to the
Federal Government even joined in the call for the Prime Minister
to 'kick start' the reconciliation process with a formal apology to
the stolen generation.(89)
Senator John Woodley, an Australian Democrat and
member of the Council for Aboriginal Reconciliation, argued that
the Prime Minister's expression of commitment 'will prove hollow
unless backed up by meaningful action' and called for a formal
apology, support for self-determination, a document of
reconciliation which has legal and constitutional backing, more
fully addressing of indigenous disadvantage and supporting native
title and an improvement in relations between non-indigenous and
indigenous leaders.(90) Similarly, the Jesuit Social Justice Centre
director Frank Brennan, has suggested the Government attempt to
mend fences with moderate Aboriginal leaders and, on the question
of outcomes, has advocated a new preamble to the Constitution:
A minimal starting point would be Shane Stone's
proposed preamble for the Northern Territory Constitution: 'Since
time immemorial the land...was occupied by various groups of
Aboriginal people who lived and defined their relationships between
each other, with the land and their nature and spiritual
environment under mutually recognised systems of governance and
laws'.(91)
Indeed, although in the February 1998
Constitutional Convention delegates voted to restrict the
Convention's agenda to the questions of whether Australia should
become a republic and, if so, what form it should take, there was
broad cross-sectoral support for including an acknowledgment of
Aboriginal and Torres Strait Islander people as the original
inhabitants and custodians of Australia. The ATSIC Board included
the following in its broad goals for constitutional change:
A new preamble recognising the status of
Aboriginal and Torres Strait Islander peoples as the First
Australians, and indication a respect for the land and Indigenous
cultural heritage;
A Bill or Rights, specifically recognising the
rights of Indigenous Australians;
Constitutional protection against adverse
discrimination on the grounds of race;
A change in wording of s. 51(26) (the 'race
power') to make it an affirmative power; and
Reserved parliamentary seats for Indigenous
representatives, as in other Commonwealth countries.(92)
The intended conclusion of the reconciliation
process on 1 January 2001, the centenary of the Australian
Constitution, made it almost inevitable that many would debate the
possible relationship between the Constitution and the
reconciliation process-and in particular the document which it is
likely to produce. In November 1998 Professor Cheryl Saunders,
Director of the Centre for Comparative Constitutional Studies,
contributed to this debate with the identification of several
possible scenarios. Firstly, the constitution would remain
unchanged and the Commonwealth, using its 'races' power in section
51(26) might pass legislation providing for a document of
reconciliation, 'treaty' or 'agreement' (in New Zealand the Treaty
of Waitangi manages to have considerable import while standing
completely apart from the other constitutional instruments).
Secondly, the constitution might be altered to authorise the
Commonwealth (and, if required, the States) to enter into a
document of reconciliation with the indigenous peoples of Australia
(just as section 105(A) authorises agreements between the
Commonwealth and the States with respect to public
borrowing)-making recourse to section 51(26) unnecessary. Thirdly,
the 'republic' constitutional referendum proposed for 1999 might
also propose including in the constitution a preamble which
acknowledges indigenous people's original occupancy and
custodianship of Australia, and perhaps enumerates these people's
'continuing rights'.(93)
The End
of 1998/Beginning of 1999 and a Plethora of Problems
November 1998 ended with the members of the
Council for Aboriginal Reconciliation feeling positive about their
first meeting since the election with Mr Howard. Although all
conceded some areas of disagreement remained, Council Chair Evelyn
Scott said she was impressed by his sincerity and Council Deputy
Chair Sir Gustav Nossal said 'He's moved a big distance from where
he was in 1997'.(94) Mr Howard committed an additional $2.4 million
to the Council to help organise a national event on 27 May 2000 at
which a document would be presented.
Over the next two months, however, 'the road to
reconciliation' appeared to be obstructed not simply by the big
rhetorical questions, but by a range of smaller issues.
-
- the response to the United Nations World Heritage Committee
report on the impact of the Jabiluka uranium mine on Kakadu, a
report which recommended against the project on both environmental
and cultural grounds
-
- the effect of the Federal Government's proposed changes to
Abstudy, aligning it closely with Youth Allowance, on indigenous
educational outcomes
-
- the possibility that the Aboriginal and Torres Strait Islander
Heritage Protection Bill 1998, before Parliament, represents a
withdrawal of Commonwealth involvement from the area of indigenous
heritage protection and fails to treat the protection of Aboriginal
heritage as 'an important national interest in itself'(95)
-
- the Federal Government response to the native title legislation
before the Western Australian Parliament, legislation which
requires federal parliamentary endorsement, and how will it view
the WA and NT joint legal challenge to the Federal Court's
recognition of the native title of the Miriuwung and Gajerrrong
people Western Australia and the Northern Territory
-
- the Federal response to the NT Government's decision to cut
funding to the bilingual education program for Aboriginal children,
given that most reports over the last decade, while noting
shortcomings in the program's success as a means for building
transferable academic skills and noting difficulties in maintaining
a focus on this objective while also having the program used as a
means of cultural maintenance, have not advocated an end to the
program.(96) The organisation Community Aid Abroad wrote to federal
Education Minister David Kemp urging him to intervene to prevent
the NT government from ending the programs and suggested that as a
signatory to several international covenants recognising
international standards for the protection of human rights the
Federal Government had an obligation to ensure adequate and
appropriate education for all Australians(97)
-
- the appropriateness of the many Aboriginal people killed in
punitive expeditions during the colonial period being honoured
within the precincts of the War Memorial-a move resisted by the War
Memorial Council and Returned Soldiers League but supported by
others such as Paul Turnbull, Associate Professor of History and
Politics at James Cook University(98)
-
- the Government's plan for a new ATSIC electoral system, not
supported by the ATSIC Commissioners, whereby the existing nine
regions would each be divided into three or five wards
-
- the possible removal of the Aboriginal Embassy from the lawns
in front of Old Parliament House in Canberra,(99) and
-
- the appropriateness of the Government's response to the call
from the United Nations Committee on the Elimination of all forms
of Racial Discrimination for the Australian Government to report on
recent developments-in particular in the areas of native title and
social justice.
In this same period a report which the Sydney
legal academic Dr David Kinley had produced for the Human Rights
and Equal Opportunity Commission became public. Dr Kinley had found
that at least 35 of the 54 recommendations in the Bringing Them
Home report had not been implemented 20 months later (e.g. no
moves to pay compensation to affected Aboriginal families, to fund
services in all regional centres to help separated indigenous
people trace their kin or to make national rules about the
treatment of juveniles in the justice system). Another nine
recommendations were reported to have been implemented only
partially or 'patchily'. It was noted that the Federal Government
had refused to legislate to make the international Genocide
Convention part of Australian law and was out of step with State
Governments by refusing to apologise for past child removal
policies.(100)
Although up-beat after the Council for
Aboriginal Reconciliation's November 1998 meeting with Mr Howard,
by 5 January 1999, Council Chair Evelyn Scott was declaring she had
serious concerns about the Aboriginal Affairs Minister Senator John
Herron and that she 'didn't expect reconciliation to be anywhere
near achievable by 2001...'.(101) By 26 January 1999, as has been
seen earlier in this paper to have happened several times over the
last 20 years, indigenous frustration with progress on other fronts
lead to renewed calls for a formal treaty. While on that day the
Prime Minister was referring to the debt owed to the original
Australians 'for the contribution they have made to our current
identity' and to the need 'to work ever closer with them to achieve
greater cooperation, greater harmony and greater common
understanding', 57 Aboriginal leaders and organisations put their
names to a national newspaper advertisement calling for a 'treaty
of reconciliation', negotiated with formally selected treaty
delegates, by 26 January 2001.(102) Signatories included indigenous
leaders Geoff Clark, Michael Mansell, George Mye and Terry O'Shane
and the advertisement was accompanied by a statement by ATSIC Chair
Gajtil Djerrkura, calling for a vast improvement in the Federal
Government's recognition of indigenous people's aspirations.
In February 1999 ATSIC's submission to the UN
Committee considering developments in Australia since 1994
summarised many of the complaints which had been made over the
preceding months, arguing that the Federal Government had:
-
- abandoned the social justice package process and the policy of
self-determination
-
- failed to demonstrate meaningful commitment to the
reconciliation process
-
- failed to show leadership in shifting to the states and
territories responsibilities in the areas of native title,
customary law, heritage protection and responding to the 'stolen
generation' issue
-
- consistently undermined ATSIC
-
- threatened to dismantle the Land Council structures in the
Northern Territory
-
- made no appointment to the Office of Aboriginal and Torres
Strait Islander Social Justice Commissioner since January 1998,
and
-
- disrupted the functions of the Human Rights and Equal
Opportunity Commission
and noting that
-
- key recommendations of the Royal Commission into Aboriginal
Deaths in Custody had not been implemented and/or had been
undermined by the states and territories
-
- there was continuing systemic discrimination against indigenous
Australians in the areas of health, housing, education, income and
employment, and
-
- mandatory sentencing legislation in Western Australia and the
Northern Territory had led to a dramatic increase in the
over-representation of indigenous young people in the criminal
justice system. (103)
Early
1999 and a Draft Pre-amble
In early 1999 pressure built for all political
parties to support the putting of two questions at the referendum
to be held later that year-one on the question of the head of state
and the other on the adoption of a 'reconciliatory' preamble to the
Constitution. At a two day national republican convention, some,
such as the head of the Australian Republican Movement, Malcolm
Turnbull, expressed their fear that including a question on a
preamble would spark a race debate and be used by some to undermine
the republic vote.(104) Others, however, supported the inclusion of
such a question. ATSIC Chair Gatjil Djerrkura said he had faith in
the ability of Australians to separate the republic issue from the
preamble. Father Frank Brennan expressed his disappointment at the
embarrassing silences and omissions at what ought to be important
moments in the national life. The Australian Labor Party's legal
affairs spokesman, Robert McClelland, indicated a shift in
Opposition thinking when he said the ALP would not stand in the way
of a second question if the Government supported the preamble.
Outside the Republican Convention, Mr Tony Abott, the Federal
Employment Services Minister and declared monarchist, supported the
putting of a preamble question: 'We really need to welcome
Aboriginals into the extended family of the Australian nation.
This, much more than becoming a republic, is the unfinished task of
Australian nationhood'.(105) A week later the Democrats announced
their unanimous party room support for the putting of a question on
a preamble which might include 'recognition of the rights of
Aboriginal people and Torres Strait Islanders' and 'encapsulate
values including equality of all people before the law and the
recognition of gender equality'(106).
On 23 March 1999 the Prime Minister presented a
draft preamble at a press conference at Parliament House. It
read:
With hope in God, the Commonwealth of Australia
is constituted by the equal sovereignty of all its citizens.
The Australian nation is woven together of
people from many ancestries and arrivals.
Our vast island continent has helped to shape
the destiny of our Commonwealth and the spirit of its people.
Since time immemorial our land has been
inhabited by Aborigines and Torres Strait Islanders, who are
honoured for their ancient and continuing cultures.
In every generation immigrants have brought
great enrichment to our nation's life.
Australians are free to be proud of the country
and heritage, free to realise themselves as individuals, and free
to pursue their hopes and ideals. We value excellence as well as
fairness, independence as dearly as mateship.
Australia's democratic and federal system of
government exists under law to preserve and protect all Australians
in an equal dignity which may never be infringed by prejudice or
fashion or ideology nor invoked against achievement. In this
spirit, we, the Australian people, commit ourselves to this
Constitution.
The Prime Minister said the preamble was an
endeavour on the part of the government 'to express in contemporary
and essentially ageless language' historical realities and
contemporary values.(107) The document was criticised, however, on
many grounds (e.g. ungrammatical language, uninclusive images,
trite values), not least for failing to refer to prior Aboriginal
ownership or custodianship of the country. In response to the Prime
Minister's subsequent defence that the word 'custodianship' was not
included on the grounds that some Australians would not support a
Preamble that included that word, the Shadow Attorney-General
Robert McClelland asked who these Australians were pointing out
that:
The Constitutional Convention, which was broadly
representative of the Australian people, unanimously endorsed the
inclusion of that word in the Preamble.(108)
Indeed, Convention delegate Liberal Senator Alan
Ferguson stated on 11 February 1998 that:
...there has been unanimous agreement amongst
the delegates here that the preamble should include 'acknowledgment
of the original occupancy and custodianship of Australia by
Aboriginal and Torres Strait Islanders.' I think that has been
general agreement amongst all the delegates here.(109)
Mid 1999
and a Draft Declaration of Reconciliation
Though it was still the case that not everyone
had identified the same road as being the most direct route to
reconciliation, by May 1999 some people's roads appeared to be
converging. With the waning of the One Nation spectre, Aboriginal
spokespeople such as Noel Pearson (though damned by Aboriginal
activist Pat O'Shane and others for doing so) felt free to speak
about the need for Aboriginal peoples to break out of their cycle
of welfare dependency and participate in the 'real economy'. Others
showed a preparedness to change the 26 May from the 'Sorry Day'
concept which the Prime Minister Mr Howard never embraced to the
more palatable 'Journey of Healing' (although the Prime Minister's
inability to attend the inaugural 'Journey' ceremony at Parliament
House caused some controversy). In the same spirit the Chairs of
the Reconciliation Council, the Aboriginal and Torres Strait
Islander Commercial Development Corporation, and ATSIC, Evelyn
Scott, Joseph Elu and Gatjil Djerrkura respectively, welcomed the
Government's recent $115 million-a-year Indigenous Employment
Program-part of a new Indigenous Employment Policy which also
included an Indigenous Small Business Fund. In seeking private
sector support for the initiatives, Peter Reith, Minister for
Employment, Workplace Relations and Small Business observed that
the 'mutual obligation' principle which has characterised a lot of
the Government's social policy, 'is also a principle that can be
extended to the private sector' and that 'the private sector has an
obligation to consider the community in which it
operates'.(110)
On 4 June 1999, a new opportunity to focus the
reconciliation debate was created. On that day, at a ceremony at
the Sydney Opera House, the Council for Aboriginal Reconciliation
released its draft Declaration for Reconciliation. The draft
declaration read:
Speaking with one voice, we the people of
Australia, of many origins as we are, make a commitment to go on
together, recognising the gift of one another's presence.
We value the unique status of Aboriginal and
Torres Strait Islander people as the original owners and custodians
of traditional lands and waters.
We respect and recognise continuing customary
laws, beliefs and traditions.
And through the land and its first peoples, we
may taste this spirituality and rejoice in its grandeur.
We acknowledge this land was colonised without
the consent of the original inhabitants.
Our nation must have the courage to own the
truth, to heal the wounds of its past so that we can move on
together at peace with ourselves.
And so we take this step: as one part of the
nation expresses its sorrow and profoundly regrets the injustices
of the past, so the other part accepts the apology and
forgives.
Our new journey then begins. We must learn our
shared history, walk together and grow together to enrich our
understanding.
We desire a future where all Australians enjoy
equal rights and share opportunities and responsibilities according
to their aspirations.
And so, we pledge ourselves to stop injustice,
address disadvantage and respect the right of Aboriginal and Torres
Strait Islander peoples to determine their own destinies.
Therefore, we stand proud as a united Australia
that respects this land of ours, values the Aboriginal and Torres
Strait Islander heritage, and provides justice and equity for
all.
Upon its launch Governor-General Sir William
Deane pleaded that 'the search for reconciliation be marked by
generosity and goodwill by all sides and be free of mere
point-scoring and personal attacks'.(111) All the major parties
declared they welcomed the document, but the Prime Minister Mr
Howard said it would need changes.
The draft declaration was accompanied by an
outline of four 'National Strategies to Advance Reconciliation'. A
'National Strategy for Economic Independence' would include better
access to capital, business planning advice and assistance,
increased networking and mentoring opportunities, better access to
training and development opportunities, promotion and encouragement
of Aboriginal and Torres Strait Islander small business, greater
strategic and integrated regional economic development plans,
fostering partnerships with the business community, and reform of
current government economic and funding programs for Aboriginal and
Torres Strait Islander peoples.
A 'National Strategy to Address Aboriginal and
Torres Strait Islander Disadvantage' is intended to better the
outcomes from government and non-government services and be based
on partnerships between indigenous people, governments, the
business sector and service organisations. A 'National Strategy to
Promote Recognition of Aboriginal and Torres Strait Islander
Rights' will recognise the Aboriginal and Torres Strait Islander
Peoples as original custodians of Australia, recognise their
continuing aspirations for greater recognition and
self-determination within the framework of the Australian
Constitution and propose strategies for increased representation in
Australian parliaments. A 'National Strategy to Sustain the
Reconciliation Process' will describe how governments at all
levels, organisations and community groups can recognise and adopt
appropriate protocols and symbols of reconciliation and will
propose the establishment of a reconciliation foundation to support
the many groups currently contributing to the reconciliation
process.
The Council has expressed its hope that 'By
supporting these strategies, governments, business, organisations
and individuals from both Aboriginal and Torres Strait Islander
peoples and the wider community can make practical commitments to
reconciliation'.(112)
Part IV: The Road Ahead
With the launch of their Draft Declaration of
Reconciliation and the outlining of four National Strategies in
June 1999, the Council for Aboriginal Reconciliation formally
opened a six-month process of public consultation which is due to
conclude on 27 May 2000, three years after the Reconciliation
Convention in Melbourne and 33 years after the 1967 constitutional
referendum on Aborigines, with a National Reconciliation event at
which the Council will present to the Australian people a final
blue print for a way forward.
With or without broad agreement on a preamble to
the constitution or a document of reconciliation, the 'road to
reconciliation' is not going to be smooth. Although innumerable
community groups, local authorities, industry peak bodies,
religious bodies and individuals around Australia are attempting to
advance the process at the grass roots level, and although every
Australian parliamentary chamber has passed motions supporting
Aboriginal reconciliation, there will be no shortage of small
issues to test the commitment of decision makers both inside and
outside of Federal parliament and the test may not simply be how
(in terms of outcome) issues are resolved but how (in terms of the
way) a resolution is found. Looming above all of these challenges
is one particular obstacle.
The
Apology Obstacle
Although the Prime Minister Mr Howard showed a
preparedness to entertain some constitutional mention of indigenous
people, his continued reluctance to find wording for an official
apology is proving an impediment to moving the reconciliation
process forward. For several reasons it is an impediment which is
unlikely to fall away simply with the passage of time. Firstly,
many in the general Australian population feel more empathy for the
Aboriginal people on this issue than any other in the area of
indigenous affairs (witness the number of people buying the Stolen
Children report and signing sorry books). Secondly, although the
first claim to the High Court failed, there are other claims for
compensation before Australian courts and if successful they will
be sure to bring further claims. Thirdly, the issue has already
drawn unfavourable international attention to Australia and this
attention is only likely to increase as the year 2000 Olympics
approaches.
It is clear that the removal of indigenous
children was mainly carried out by agents of the State Governments
and Churches, that many at the time believed it to be in the best
interest of the children (e.g. the recollections of Colin Macleod,
a patrol officer now Melbourne Magistrate),(113) and that the High
Court found in the recent Kruger & Bray case that the
Commonwealth legislation which underpinned the removal of
indigenous children in the Northern Territory, the Aboriginals
Ordinance 1911, was not constitutionally invalid. Such
considerations have led some commentators to recommend against the
Federal Government making an official apology for the practice. Dr
Ron Brunton suggested the National Inquiry failed to distinguish
between 'truly voluntary' and 'coerced' removals and argued that if
what was happening at Auschwitz was genocide then what happened in
Australia cannot be genocide.(114) Professor Kenneth Minogue,
visiting Australia from the Department of Government at the London
School of Economics, even suggested:
We are dealing with collective self-accusation,
complicated by the fact that the hands that beat the breast are not
the hands that committed the offence
and
Certainly it is the case that saturating
indigenous peoples in a mist of self-referential Western sympathy
is merely one way in which we use them for the
luxury of our own self-regard.(115)
Douglas Meagher QC, in the defence of the
Commonwealth in a 'stolen children' Federal Court Case in Darwin
early in 1999, enlisted the Hasluckian comparison of Aborigines to
delinquent children in an attempt to illustrate the benign
commonsense behind the Commonwealth assimilationist policy. He also
argued that the Commonwealth acted nobly and did not sanction the
'breeding-out' policy of Dr Cecil Cook who regarded the
'half-caste' population as a menace to the future of European
settlement in the north.(116)
More recently the Hon. Peter Howson, Minister
for Aboriginal Affairs in the McMahon Government in the early
1970s, reported a story of attempted infanticide and argued that
'half-caste' children were not so much being stolen by the State as
being rescued from hostile communities. He further suggested
that:
The only way forward for Australia's Aborigines
is to join mainstream Australia, with other Australians, as a
nation in the global community. The idea of a return to a life of
hunter-gathering-with its religion and rituals designed to increase
the supply of game and other food resources; its rites of passage
such as teenage circumcision and sub-incision; and its close
connection to the physical features of a landscape which comprised
their entire universe-is a fantasy. However, the message which has
been coming out of Canberra, ever since the Coombsian takeover in
1971, a message accompanied by billions of dollars, has been that
such a return is feasible and ultimately desirable.(117)
Reginald Marsh, a former Assistant Secretary of
the Department of Territories and Assistant Administrator of the
Northern Territory, also recently argued that the children were
being rescued from a community in which they had no place,
suggested there was no evidence that any traditional community
protested against the removal of a particular Aboriginal child, saw
Hasluck's assimilation policy as about a society making 'informed
choices about their personal future', and suggested:
Invoking comparisons with the Holocaust and
other genocides in different circumstances and historical
backgrounds serves only to divert the pursuit of reconciliation
appropriate for the Australian circumstances. It is on the way to
an absurdity like mounting a case for compensating the Welsh for
Roman invasion and charging the Italian government, as the
successors of the Romans for financial compensation.(118)
On the other hand, many arguments have been
advanced in favour of the present Federal Government making an
official apology for past practice. They include the following:
-
- the 'State' is a continuum which outlives individual
governments and the legal and moral obligations or debts which one
government incurs, failing a revolution or dramatic break in the
State's continuity, are carried over to later governments. The
Prime Minister can make an apology on behalf of the Federal
Government for past acts of dubious legal and moral worth for which
no other government has yet apologised, without implying that
anyone presently alive need feel guilty
-
- the Commonwealth Government was actively involved in the
practice of removing children-both through its support of such
resolutions as that of the 1937 Commonwealth State Native Welfare
Conference, and through its early administration of the Northern
Territory. Despite Douglas Meagher QC's protestations to the
contrary, there is clear evidence that the Commonwealth did embrace
Cook's policy (e.g. on 22/2/1933 the Secretary of the Department of
the Interior, J.A.Carrodus, wrote that 'The policy of mating
half-castes with whites for the purpose of breeding out the colour
is that adopted by the Commonwealth Government on the
recommendation of Dr Cook'.(119)) Under Paul Hasluck's
administration policy was regularised so that removals had to be
approved by the Director of Native Affairs and in the best interest
of the child, but when administrator F.J.Wised recommended that no
child under the age of four be removed, except where the question
of danger arose, Hasluck is recorded as insisting 'No age limit
need be stated. The younger the child is as the time of removal the
better for the child'(120). The Commonwealth's much later
opposition to special laws for indigenous children did not
constitute opposition to the practice of removal of children as it
was clear the courts were prepared to equate indigenous poverty
with 'neglect' and an indigenous life-style with 'uncontrollable'.
It was not until the mid 1970s when indigenous legal services (not
initially funded by the Commonwealth) started to represent children
and families involved in separation orders and indigenous child
care groups started to offer alternatives to the removal of
children from their families that the number of forced separations
started to drop dramatically
-
- even in the time in which it occurred, it can be argued that
the practice was not indisputably in the best interest of the
children. There is abundant evidence that many officials believed
Aboriginal people to be inferior and 'half-castes' needed to be
absorbed irrespective of their individual circumstances.(121) The
argument that 'half-caste' children were at great risk of
infanticide or alienation with their community, is not supported by
the evidence. There are many accounts of communities trying to
prevent the removal of the children and the evidence, moreover,
that many children subsequent to their removal suffered physically
harsh living conditions, physically abuse and multiple
institutional and/or foster placements, is overwhelming.(122) As
Robert Manne despaired:
I do not know how far the Howard Government can
legitimately separate itself from the historical arguments mounted
in Darwin on its instructions and on its behalf. But if Meagher's
attempt to portray child removal as noble and to rehabilitate the
philosophy of assimilation has the support of his client, the
Commonwealth Government, then the cause of reconciliation is
dead.(123)
-
- the Convention on Genocide, ratified by Australia in 1949,
included within its definition of genocide 'any of the following
acts committed with intent to destroy, in whole or in part, a
nation, ethnic, racial or religious group, as such: (a) Killing
members of the group; (b) Causing serious bodily or mental harm to
members of the group; (c) Deliberately inflicting on the group
conditions of life calculated to bring about its physical
destruction in whole or in part; (d) Imposing measures intended to
prevent births within the group; (e) Forcibly transferring children
of the group to another group.' Many commentators have found this
definition to embrace that which happened in Australia even if it
also covers that which has also happened elsewhere. There may not
this century have been acts in the (a) category, but there were
certainly many in the (e) category-and the State's intention was
clear. The 1937 Conference resolved that 'the destiny of the
natives of aboriginal origin, but not the full blood, lies in their
ultimate absorption by the people of the Commonwealth' and that
'all efforts be directed to that end'. The annual reports of the
Aborigines Protection Boards in various jurisdictions were often
equally explicit, a NSW Annual Report stating 'this policy of
dissociating the children from [native] camp life must eventually
solve the Aboriginal problem', and by placing the children in
'first-class private homes' the superior standard of life would
'pave the way for the absorption of these people into the general
population'(124)
-
- in most jurisdictions removals were taking place without court
orders, thus infringing the legal principle derived from the common
law that children should not be removed from their parents unless a
court, on evidence proving removal is in the best interest of the
child, decides otherwise. Indeed, in the 1950s in the
Commonwealth-administered Northern Territory thousands of children
were removed without any court or legal process involved. In the
early 1950s there was some debate over the possible introduction of
a requirement for maternal consent, but in the end the guidelines
only required the Director of Native Affairs to be convinced that
an 'attempt has been made to explain to the mother the advantages
to be gained by the removal of her child'.(125) A memorandum from a
March 1959 conference of welfare officers spoke of the 'strong
pressures being brought to bear on the parent to release the
child'(126)
-
- in some jurisdictions laws made the Protector or Protection
Board the legal guardian of Aboriginal children, infringing the
legal principle derived from the common law that parents are the
legal guardians of children unless a court, on evidence proving
that another arrangement is in the best interests of the child,
decides otherwise
-
- the practice involved deceit by public officials. Many children
were told they were unwanted, rejected or that their parents were
dead, when this had not been the case. There were cases where
mothers of newborns were told their child had died when it had been
removed
-
- the practice was on such a large scale, over such a long period
of time and continued so close up to the present day that its
effect cannot be dismissed as past. The experience of the removal
has often had a continuing effect on the children removed, on their
children, on the families from which they were taken and on the
foster carers when reunions have been sought. Most present day
indigenous families have been affected, in one or more generations,
by the forcible removal of one or more children. Most of those
indigenous people who have died in police custody had been removed
as children
-
- the practice involved breach of fiduciary duty. The
Commonwealth and the States which legislated to put children into
their care had a fiduciary duty of care to children who then came
into their care and the hunger, fear, poor education, violent
punishment, emotional trauma and sexual abuse which was commonly
reported indicates that this duty of care had been repeatedly
breached even by contemporary standards of the day. Indeed, there
are many records of non-Aboriginal citizens objecting vigorously to
the policy of removals and the maltreatment at the time
-
- the characterisation of the assimilation policy as the
progressive alternative to a primitive superstitious hunter-gather
life-style, is to set up a false set of choices, to fail to
recognise that others at the time were arguing child welfare could
be advanced in other ways and to fail to consider the full
consequences of the policy of child removal
-
- governments overseas have seen fit to apologise for morally
questionable actions of past governments. Thus, the Swiss
Government apologised to the Romany victims of child removals and
the Canadian Government apologised for the detention during World
War II of Japanese Canadians. In 1993 the US Congress, in a joint
Senate and House resolution, apologised to Native Hawaiians on
behalf of the US for the overthrow of the Kingdom of Hawaii one
hundred years earlier. In 1997 the Norwegian King apologised 'for
the injustices committed in the past against the Sami people by the
Norwegian state through harsh policies of Norwegianization'. In
1998 Canadian Minister of Indian Affairs and Northern Development
declared that 'the Government of Canada wants to make a solemn
offer of reconciliation'. (For more on the process leading to this
declaration and its content see Appendix 3)
-
- all State and Territory parliaments (except the Northern
Territory parliament) have passed motions expressing regret for
past actions with respect to Aboriginal families and most of the
motions include an explicit apology for the forced separation of
children (NSW 18 June 1997; SA 28 May 1997; Queensland 3 June 1997;
WA 27 and 28 May 1997; ACT 17 June 1997; Victoria 17 September
1997; Tasmania 13 August 1997). (See Appendix 1), and
-
- an apology need not expose the Commonwealth to judicial
compensation claims (many of which have already been lodged on the
grounds of breaches of fiduciary duty), and the Commonwealth may
more effectively reduce its exposure to such claims by cooperating
with the states in the formulation of a comprehensive compensation
adjudication mechanism. In February 1999 the NSW Government was
reportedly considering a proposal by the Public Interest Advocacy
Centre (PIAC) to set up a Reparations Tribunal, similar to
tribunals in South Africa and New Zealand, with the power to make
compensation orders to members of the stolen generation. The PIAC
proposal drew attention to the fact that litigation raises high
expectation of financial compensation and does not provide for
other reparations.(127)
Conclusion
This paper has attempted to trace the rhetorical
road which has led from the period of dispossession and the policy
of assimilation to the later policy of self-determination and the
present process of reconciliation. Along this road debate has moved
from how best to effect cultural and biological assimilation, to
explorations of the concepts of 'self-management',
'self-determination', 'self-government', and 'sovereignty', to
grappling with the possibility of a 'treaty', 'compact' or
'makarrata'. In more recent years the debate has progressed on to
the issues surrounding a possible 'social justice package',
'document of reconciliation' and 'an apology for past policies'. No
matter how far the debate progresses, however, the past is never
far behind. Indeed, protagonists in the debate sometimes label each
other according to their purported attitude to the past (eg. as
being adherents to a 'black armband' or 'white blindfold' view of
history) and obstacles which have their roots in the past litter
the road ahead.
On 27 May 2000, three years after the
Reconciliation Convention in Melbourne and 33 years after the
1967 constitutional referendum on Aborigines, the Council for
Aboriginal Reconciliation plans a national event to present a way
forward to the Australian people. In the six months leading up to
May 2000, not only will the merits of the recently released draft
Declaration for Reconciliation be much debated, but many other
issues in the area of indigenous affairs will be viewed in the
context of the reconciliation debate. It will be difficult,
however, to participate in a meaningful way in this debate without
some understanding of the history of public policy in the area of
indigenous affairs and the language used in earlier debates. This
is especially so, as the debate has not moved neatly forward, with
all participants progressing in unison from one set of concepts to
another. Terms such as 'dispossession', 'assimilation',
'self-determination' and 'treaty', although introduced in different
stages of the debate, are still used in the current debate, and the
same forces which gave birth to the 'process of reconciliation' as
a compromise way forward, are still at play producing very
different agendas for reconciliation.
On the 1 January 2001, the anniversary of the
Centenary of Federation, the Reconciliation Council will cease to
exist. What will be in place by that time (an agreement, a document
of reconciliation, a new preamble to the constitution, a
Reconciliation Foundation?) is still far from clear. That which is
clear, however, is, as the Reverend Makhenkesi Stofile,
representing the South African President Nelson Mandela, at the
December 1998 'World Indigenous Pathways' conference advised, that
'even after indigenous Australia succeeded in its quest for
reconciliation, the legacy of age-old problems would remain for
generations'.(128).
Appendix 1.
Council for Aboriginal Reconciliation, Addressing the Key Issues
for Reconciliation, Canberra, 1993,
pp.51-52.
(1) Non-Statutory:
the convening of State, Territory and Federal
Constitutional Conventions to oversee a constitutional reform
process involving indigenous representatives;
the negotiation of issue or area-specific
agreements and protocols between governments, non-government and
indigenous peoples' organisations and individuals which might be
enforceable in identified ways, or pursuant to statute;
the negotiation of new inter-governmental
agreements regarding indigenous peoples' issues;
preliminary agreement among Federal, State,
Territory and local governments, and Aboriginal and Torres Strait
Islander community councils, local governments, and organisations
regarding implementation of a right of self-government, including
the issues of jurisdiction, lands and resources, and economic and
fiscal arrangements, with the objective of concluding final
agreements elaborating relationships between governments of
Aboriginal and Torres Strait Islander peoples and governments;
the negotiation of a Makarrata, Treaty of
Reconciliation or treaty between the Federal Government and
indigenous peoples' organisations (this may also be given statutory
or constitutional recognition); and
the amendment of the terms of reference of
Federal, State and Territory Parliamentary legislation scrutiny
committees to enable them to review Bills to ensure that they have
sufficient regard to Aboriginal and Torres Strait Islander customs
and traditions, and indigenous peoples' human rights;
(2) Statutory:
statutory recognition of self-governing rights
for indigenous communities;
to require that legislation be drafted in
accordance with prescribed standards relating to civil rights and
liberties, and with regard to Aboriginal and Torres Strait Islander
peoples' customs and traditions, similar to requirements in
Queensland;
the passage of amendments to Federal, State and
Territory Acts Interpretation Acts to require courts to construe
legislation consistent with Aboriginal and Torres Strait Islander
customs and traditions wherever practicable;
the introduction of statutory Bills of Rights
which include specific recognition of indigenous peoples'
rights;
statutory recognition of Aboriginal and Torres
Strait Islander customary laws; and
statutory recognition of agreements between
Federal, State, Territory and local governments, and Aboriginal and
Torres Strait Islander peoples', or between any of them, relating
to indigenous peoples' issues; and
(3) Constitutional change:
(This would be subject to any relevant manner
and form restrictions. For example, amendments to the Federal
Constitution will require the approval of an overall majority of
electors voting at a referendum as well as a majority of electors
voting in a majority of States under s.128):
the insertion of a preamble into Federal, State
and Territory constitutions acknowledging prior Aboriginal and
Torres Strait Islander ownership of the continent and its islands,
and its subsequent, substantial extinguishment;
constitutional recognition for a Bill of Rights
with specific reference to indigenous peoples' rights;
constitutional entrenchment of a justiciable
right of indigenous self-government in relation to specified areas
(possibly including lands and resources, language and culture,
education, policing and the administration of justice, health,
social and economic development);
constitutional recognition for the Aboriginal
and Torres Strait Islander Commission or similar bodies;
the creation of reserved seats in Federal, State
and Territory Parliaments (lower or upper houses, or both) for
indigenous peoples. Models are available in India and New
Zealand;
constitutional recognition of sovereign,
domestic dependent nationhood for Aboriginal and Torres Strait
Islander 'nations';
entrenched recognition for Aboriginal and Torres
Strait Islander community councils or other local government
structures in Federal, State and Territory constitutions;
constitutional recognition of Federal, State and
Territory obligations to protect and develop Aboriginal and Torres
Strait Islander cultures and traditions;
the creation of separate Aboriginal and Torres
Strait Islander parliaments analogous to the Sami Parliaments in
Norway;
the insertion of a broad enabling power within
the Federal Constitution similar to the current s.105A, enabling
the negotiation and recognition of one or more compacts, agreements
or treaties between the Federal Government and Aboriginal and
Torres Strait Islander peoples', which could be followed by
legislative recognition of negotiated agreements;
the replacement of s.51(xxvi) of the Federal
Constitution (the 'races power') with a provision enabling the
Federal Parliament to make laws with respect to 'Aboriginal and
Torres Strait Islanders' as recommended by the Constitutional
Commission in 1988; and
constitutional recognition and protection for
any other preferred options.
Another option is to leave things as they are,
and to concentrate on improving the climate of relations without
any formal agreement. Or it may be that Aboriginal and Torres
Strait Islander organisations will prefer to pursue remedies
through the courts.
Appendix 2: Parliamentary Motions of Apology-Stolen
Children
NSW
18 June 1997-Stolen Generations
Apology
Mr Carr, Premier
I move that this House, on behalf of the people
of New South Wales:
-
- apologises unreservedly to the Aboriginal people of Australia
for the systematic separation of generations of Aboriginal children
from their parents, families and communities.
- acknowledges and regrets Parliament's role in enacting laws and
endorsing policies of successive governments whereby profound grief
and loss have been inflicted upon Aboriginal Australians
- calls upon all Australian governments to respond with
compassion, understanding and justice to the report of the Human
Rights and Equal Opportunity Commission entitled 'Bringing Them
Home',
- reaffirms its commitment to the goals and process of
reconciliation in New South Wales and throughout Australia.
South Australia
28 May 1997-Aboriginal
Reconciliation
The Hon Dean Brown, Minister for Aboriginal
Affairs
I move that the South Australian Parliament
expresses its deep and sincere regret at the forced separation of
some Aboriginal children from their families and homes which
occurred prior to 1964, apologises to these Aboriginal people for
these past actions and reaffirms its support for reconciliation
between all Australians.
Queensland
3 June 1997-Stolen Children, Aboriginal
Reconciliation
The Hon K.R.Lingard, Minister for Families,
Youth and Community Care
I move that the Parliament of Queensland on
behalf of the people of Queensland expresses its sincere regret for
the personal hurt suffered by those Aboriginal and Torres Strait
Islander people who in the past were unjustifiably removed from
their families.
Western Australia
27 May 1997-Aborigines, Family
Separation
Mr Court, Premier
It is appropriate that this House show respect
for Aboriginal families that have been forcibly separated as a
consequence of government policy in the past, by observing a period
of silence (Members stood for one minute silence)
28 May 1997-Aborigines, Family
Separation
Dr Gallop, Leader of the Opposition
I move that this House apologises to the
Aboriginal people on behalf of all Western Australians for the past
policies under which Aboriginal children were removed from their
families and expresses deep regret at the hurt and distress that
this caused.
ACT
17 June 1997-Motion in Response to the
'Bringing Them Home' Report
Mrs Carnell, Chief Minister
I move that this Assembly:
-
- apologises to the Ngunawal people and other Aboriginal and
Torres Strait Islander people in the ACT for the hurt and distress
inflicted upon any people as a result of the separation of
Aboriginal and Torres Strait Islander children from their families
- assures the Aboriginal peoples and Torres Strait Islanders of
this Territory that the Assembly regards the past practices of
forced separation as abhorrent and expresses our sincere
determination that they will not happen in the ACT
- affirms its commitment to a just and proper outcome for both
the grievances of Aboriginal and Torres Strait Islander people
adversely affected by those policies and to the recommendations of
the Bringing Them Home Report,
- acknowledges that the Government is negotiating a Regional
Agreement with the Ngunawal people in relation to the Ngunawal
Native Title claim in the ACT, and
- by this resolution seeks to take an important step in the
healing process which is fundamental to reconciliation between
Aboriginal and Torres Strait Islander peoples and the
non-indigenous members of the ACT community.
Victoria
17 September 1997-Motion of Apology to
Aboriginal People
Mr Kennett (Premier)-By leave, I move:
That this House apologises to the Aboriginal
people on behalf of all Victorians for the past policies under
which Aboriginal children were removed from their families and
expresses deep regret at the hurt and distress this has caused and
reaffirms its support for reconciliation between all
Australians.
Tasmania
13 August 1997-Motion of Apology to
Aboriginal People (extract)
Mr Rundle (Braddon - Premier)-Mr Speaker, the
motion before the House this afternoon is:
-
- That this Parliament, on behalf of all Tasmanians, expresses
its deep and sincere regrets at the hurt and distress caused by
past policies under which Aboriginal children were removed from
their families and homes, apologies to the Aboriginal people for
those past actions and reaffirms its support for reconciliation between all Australians.
Appendix 3: Overseas Use of the Term
Reconciliation
Reconciliation, by that or other names, is a
process on which many countries have embarked. Below are four very
different examples of the use of the word overseas.
Canada
In December 1979 Canadian governments and
indigenous leaders began talking about the challenges ahead. As the
opening words of Bill Jarvic, minister assisting Prime Minister
Clark, make clear, the process they were entering bears remarkable
resemblance to that which Australians are entering:
I have no doubt that many of the achievement
from this process will be in the form of intangible benefits or
'spin-offs'. As much as we may eventually want to find new words
for the Constitution, we are here as well to take account of the
broad relationship of governments and native peoples and seek to
improve it...Work has to be done together. Everyone knows that we
are not dealing with subjects where someone can walk into a room
and deliver a position and expect people to agree and go home. All
of us, and I stress the word all, are going to need to explore each
other's concerns and vocabularies. One of the reasons we will need
to do this is that there exists no generally accepted language or
experience for some of the work we must undertake. Such a process
requires a commitment to meetings, however informal, to
discussions, and to patience... The challenge for all of us is that
here we may have to come to terms with perceptions of history,
society, even law, which are new to many of us. It is clear that
our past practices have not adequately permitted this, and I need
hardly refer to some depressing social statistics to illustrate
this point... Canadians are coming to realise that the problems of
alienation are not simple, but often rooted in long periods of
unresolved grievances and thwarted aspirations. All governments
have experienced the costs of failing to solve these difficulties;
what we must do now is show that our Canadian federalism provides
opportunity for all people to fulfil themselves. Our legal and
political systems have always been flexible enough to accommodate
such diversity. Our only guarantees of success, however, are open
minds, understanding and goodwill.(129)
The process begun with the above words led, many
years later, to the report of the Royal Commission on Aboriginal
Peoples and culminated in January 1998 with the Federal
Government's formal response to that report, and the 'Statement of
Reconciliation' which accompanied this response.(130) The Statement
included a declaration that 'it is essential that we deal with the
legacies of the past affecting the Aboriginal peoples of
Canada...', and that:
Sadly, our history with respect to the treatment
of Aboriginal people is not something in which we can take pride.
Attitudes of racial and cultural superiority led to a suppression
of Aboriginal culture and values. As a country, we are burdened by
past actions that resulted in weakening the identity of Aboriginal
peoples, suppressing their languages and cultures, and outlawing
spiritual practices. We must recognise the impact of these actions
on the once self-sustaining nations that were disaggregated,
disrupted, limited or even destroyed by the dispossession of
traditional territory, by the relocation of Aboriginal people, and
by some provisions of the Indian Act. (131)
The Statement also included an apology for the
Government of Canada's role in the development and administration
of special residential schools:
Particularly to those individuals who
experienced the tragedy of sexual and physical abuse at residential
schools, and who have carried this burden believing that in some
way they must be responsible, we wish to emphasise that what you
experienced was not your fault and should never have happened. To
those of you who suffered this tragedy at residential schools, we
are deeply sorry.(132)
Northern Ireland
In the United Kingdom, with respect Northern
Ireland, there is a 'Special Support Programme for Peace and
Reconciliation', the formal aims of which are:
To reinforce progress towards a peaceful and
stable society and to promote reconciliation by increasing economic
development and employment, promoting urban and rural regeneration,
developing cross border co-operation and extending social
inclusion.
South Africa
In South Africa the word 'reconciliation' is
often linked with the word 'forgiveness'. Thus FW De Klerk declared
that 'The only way to break the cycle is through forgiveness and
reconciliation' and that 'Reconciliation means we must forgive and
hope to be forgiven, but we must acknowledge our debts. We must
examine accounts of the past and seek to find a balance. Find the
balance and close the book'.(133) In April 1996 'The Truth and
Reconciliation Commission', led by Archbishop Desmond Tutu, started
taking evidence and in May 1997 De Klerk apologised 'in full
knowledge of the indignities and pain caused by apartheid', for
constitutional decisions of the past, for indignities of racial
discrimination, and expressed the hope that the apology would help
to free those who were oppressed.(134)
Bosnia
International bodies such as the United Nations
High Commissioner for Refugees (UNHCR) pair the word repatriation
with reconciliation, knowing that 'People who have experienced
ethnic cleansing cannot simply "get over it, go home and move
on"'.(135) For repatriation to be successful it has to be voluntary
and accompanied by a process of reconciliation, and for that
process to be successful there have to be 'comprehensive
strategies', 'realistic time frames' but above all, 'a vision of
reconciliation'.
Bougainville
Among the major undertakings of the late 1997
Lincoln Agreement on Peace, Security and Development
on Bougainville was agreement for elections to a Bougainville
Reconciliation Government to be held on the island before the end
of 1998. This election has not yet been held, due to the Papua New
Guinea government's proroguing of parliament, but there is still an
official commitment to setting up a 'Reconciliation
Government'.
Endnotes
-
- Council for Aboriginal Reconciliation, Key Issue Paper
No.4: Sharing History, Canberra, Australian Government
Publishing Service, 1994, p. 19.
- For examples of such labelling see Mark McKenna, 'Different
Perspectives on Black Armband History', Rearch Paper No.5
1997-98, Department of the Parliamentary Library.
- See, for example, S.Young, 'The Long Way Home: Repatriation for
the Removal of Aboriginal Children', University of Queensland
Law Journal, 1998, vol. 20 (1), pp. 76-77.
- See the Department of Territories publication The
Australian Aborigines, July, 1967, pp 48-61; the three volumes
of C.D. Rowley, Aboriginal Policy and Practice, 1970-71,
ANU Press, Canberra; G. Nettheim (ed.) Aborigines, Human Rights
and the Law, Australian and New Zealand Book Co. (in
conjunction with the International Commission of Jurists,
Australian Division), Sydney, 1974; C. Tatz, Race Politics in
Australia, Aborigines, Politics and Law, University of New
England, Armidale, 1979 and 'Aborigines, law and race relations',
Ethnic and Racial Studies, v. 3, July 1980, pp. 281-302;
J. Goldring, 'Review of G.Nettheim's Outlawed...', Monash
University Law Review, vol. 1, March 1975: 301-309; Janine
Roberts, From Massacres to Mining, The Colonisation of
Aboriginal Australia, London, 1978, pp. 43-49 and T. Rowse,
'Assimilation and after' in A. Curthoys, et. al. (eds)
Australians from 1939, Fairfax, Syme and Weldon, Broadway
NSW, 1988, pp. 133-149. See also Andrew Markus, Australian Race
Relations 1788-1993, St.Leonards, Allen & Unwin, 1994.
- T.H. Kewley, Social Security in Australia 1900-72,
Sydney, S.U.P., 1973: 218 and 266. In 1941 legislation introducing
Child Endowment provided for the payment of the endowment only to
an Aboriginal person who was not nomadic or wholly dependent upon
the Commonwealth or a State for support. In 1942 the Age and
Invalid Pension and Maternity Allowance legislation was amended to
allow the payment to 'an aboriginal native who was living under
civilised conditions and whose character and intelligence qualified
him to receive a pension'. The 1942 legislation introducing the
Widow's Pension allowed for a pension to be paid to an Aboriginal
who possessed a certificate of exemption from State laws relating
to the control of Aborigines. In the absence of such a certificate,
eligibility depended on an assessment of the person's character,
standard of intelligence and social development. Similarly, the
1944 legislation introducing Unemployment and Sickness Benefits
provided for the payment of benefit to Aborigines 'if the
Director-General was satisfied that, having regard to his
character, standard of intelligence and development, it was
reasonable that he should receive benefit' and the Commonwealth
Social Services Consolidation Act 1947-50 provided that
age, invalid and widow's pensions, maternity allowances and
unemployment and sickness benefits could be paid only to Aborigines
judged to meet a certain standard of 'character, intelligence and
social development'. In 1959 Social Security legislation was
amended to provide for eligibility for all pensions and benefits
for Aboriginals who were not 'nomadic or primitive'.
- Jeremy Beckett,. 'Aboriginality, Citizenship and Nation State',
in Aborigines and the State in Australia, Special Issue
Series, Social Analysis, Routledge, London, No. 24, December, 1988:
10.
- Transcript of conference, Aboriginal welfare. Initial
Conference of Commonwealth and State Aboriginal Authorities.
Canberra. 21-23 April 1937.
- Coral Edwards, and Peter Read, The Lost Children,
Doubleday, Sydney, 1989.
- For more on the referendum see J. Gardiner-Garden, 'The Origin
of Commonwealth Involvement in Indigenous Affairs and the 1967
Referendum', Background Paper No. 11, 1996-97, Canberra,
Department of the Parliamentary Library, 1997.
- e.g. Aboriginal Land Fund Act 1974, the Aboriginal
Loans Commission Act 1974, the Aboriginal and Torres
Strait Islanders (Queensland Discriminatory Laws) Act 1975,
Aboriginal Councils and Associations Act 1976,
Aboriginal Land Rights (Northern Territory) Act 1976,
Aboriginal and Torres Strait Islanders (Queensland Reserves and
Communities Self-Management) Act 1978, Aboriginal
Development Commission Act 1980, Aboriginal and Torres
Strait Islander Heritage (Interim Protection) Act 1984,
Aboriginal and Torres Strait Islanders Commission Act
1989, the Council for Aboriginal Reconciliation Act
1991, the Native Title Act 1993 and Land Fund and
Indigenous Land Corporation (ATSIC Amendment) Act 1995.
- 'Wages', in D. Horton (ed.) The Encyclopaedia of Aboriginal
Australia, Aboriginal Studies Press, Canberra, 1994, p. 1138.
- H.C. Coombs, Kulinma, Listening to Aboriginal
Australians, Australian National University Press, Canberra,
1978, pp. 5-6.
- 'Tent Embassy', in D. Horton (ed.) The Encyclopaedia of
Aboriginal Australia, Aboriginal Studies Press, Canberra,
1994, p. 1062.
- ibid, pp. 1062-3.
- ATSIC News, Spring 1991, pp. 8-9.
- Markus, Australian Race Relations 1788-1993, Allen
& Unwin, St. Leonards, 1994, p. 177.
- Will Sanders, 'From self-determination to self-management', in
P. Loveday (ed). Service Delivery to Remote Communities,
ANU NARU Monograph, Darwin, 1982.
- Quoted in Will Sanders, 'From Self-determination to
self-management', in P. Loveday, (ed.) Service Delivery to
Remote Communities, 1982, p. 6.
- Australia. Senate. Hansard, 19 November 1979: 2427.
- See also Peter Sutton, 'Land Rights and Compensation in Settled
Australia', Social Alternatives, v.2 (2) August 1981: 10:
As Peter Sutton noted: 'the notion of compensation is deeply
ingrained in the system by which Australian people use their state
to take the sharp edge off the suffering of the less fortunate.
Most compensation is awarded by the state. Since Aboriginal
people...are indeed suffering as a group from the invasion of their
lands and lives by the British Empire, it follows that in a case of
group compensation it is the state which should provide
recompense.'
- Two Hundred Years Later... Report by the Senate
Standing Committee on Constitutional and Legal Affairs on the
feasibility of a compact, or 'Makarrata', between the Commonwealth
and Aboriginal people, AGPS, Canberra, 1983, pp. 50.
- ibid. p. 115.
- ibid. p. 162.
- ibid. p. 159.
- The Committee's work was documented by Judith Wright in We
Call for a Treaty, Collins/Fontana, Sydney, 1985.
- Australia. House of Representatives. Hansard, 8
December 1983.
- Richard Chisholm, Aboriginal Law Bulletin, no. 14,
June 1985. Similarly, Professor Russel Barsh of the University of
Washington in Seattle concluded in 'Aboriginal rights, human rights
and international law', Australian Aboriginal Studies,
1984, no. 2: 4: 'The relevant legal issue is not whether Aboriginal
people were, or are now ''sovereign'', but whether they have a
right to become independent through the exercise of
self-determination. It is plain that Aboriginal people never
executed any treaty surrendering their political rights, nor voted
to incorporate themselves with Euro-Australians. Australian
citizenship was conferred on them unilaterally. They cannot
exercise the electoral franchise to protect themselves from
injustice because they are a numerical minority. There is no real
question of the territorial integrity of Australia because
Australia can show no deed or treaty of title to the continent, and
occupied much of it within living memory. The principles of
self-determination and decolonisation appear applicable..'
- Care Newsletter, no. 81, December-February 1987:
10-11.
- Newsletter of the Aborigines Advancement League
(Victoria), May 1987, p. 8.
- Prof. Erica Irene A Daes, Confidential Report on Visit to
Australia 12 Dec. 1987-2 Jan. and
7-22 January 1988, pp. 24-26.
- House of Representative Hansard, 23 August 1988, p.
137.
- Frank Brennan, Self-determination for Aborigines-Limits and
Possibilities. November 1991: 5.
- Senator Chaney claimed that the Department of the Prime
Minister and Cabinet had decided: 'the Australian Government
delegates in international fora will not use the term
''self-determination'' to prevent its misinterpretation or its
extension beyond Australian Government policy'. Australia. Senate.
Debates, 23 August 1988.
- 1991 Budget Related Paper No.7, Social Justice for
Indigenous Australians, 1991-92, p. 12
- Australia. House of Representatives Standing Committee on
Aboriginal Affairs. Our Future Our Selves, Aboriginal and
Torres Strait Islander Community Control Management and
Resources. August 1990, p. 4. The Committee noted that: 'The
distinction between the terms is important with ''self-management''
focusing on efficient administration of communities and
organisations. ''Self-determination'', on the other hand, goes
beyond this and implies control over policy and decision making,
"especially the determination of structures, processes and
priorities"'.
- Australia. Leader of the Opposition (Mr. Howard). News
Release, 6 September, 1987.
- The Sydney Morning Herald, 13 June 1988.
- Address given to the Australian Society of Labor Lawyers 10th
Annual Conference,
26-28 August 1988.
- Talk delivered at the 'Aboriginal Legal Heritage' Session of
the Bicentennial Australian Legal Convention in Canberra on the 1
September 1988.
- Land Rights News, vol. 2, no. 12, January 1989, pp.
18-20.
- J. Ferguson, (ed). Aboriginal Peoples and Treaties,
Seminar Report, Sydney, March 1989, pp. 93-97.
- ibid. pp. 97-110.
- The Sydney Morning Herald, 2 December 1989.
- AAP, 2 February 1990.
- AAP, 4 February 1990.
- P. Jull, 'The future of government. Some possible options: A
view from overseas', Land Rights News, July 1989, p. 19.
- Quoted in H. Reynolds, 'An Aboriginal Republic, too?', The
Independent Monthly, March 1992, pp. 11-12.
- ibid. p. 12.
- ibid.
- The Canberra Times, 15 August 1989 and Catholic
Weekly, 30 August 1989.
- For example, a Saulwick Age poll published in the Age
on 24 March 1992 suggested that there was a stronger support for a
treaty or compact, with 65 per cent of respondents in favour and 27
per cent against, than there had been five years earlier when 58
per cent were in favour and 37 per cent against, but suggest a
slight community turn around on whether a treaty should acknowledge
that the land was originally owned by the Aborigines and was taken
from them and whether a treaty should provide money for Aboriginals
to spend as they see fit on education, health and welfare. The
electorate also seemed to continue to be adamantly opposed to the
proposition that a treaty should provide cash compensation or
reparations and continue to be divided on whether a treaty should
grant further land ownership.
- The Australian, 18 December 1991.
- ibid.
- The Australian, 24 February 1992.
- The Canberra Times, 21 May 1992.
- Understanding Country: The Importance of Land and Sea in
Aboriginal and Torres Strait Islander Societies; 2. Improving
Relationships: Better Relationships Between Indigenous Australians
and the Wider Community; 3. Valuing Cultures: Recognising
Indigenous Cultures as a Valued Part of Australian Heritage; 4.
Sharing Histories: A Sense for All Australians of a Shared
Ownership of Their History; 5. Addressing Disadvantage: A Greater
Awareness of the Causes of Indigenous Australians' Disadvantage; 6.
Responding to Custody Levels: A Greater Community Response to
Addressing the Underlying Causes; 7. Agreeing on a Document: Will
the Process of Reconciliation be Advanced by a Document or
Documents of Reconciliation?; 8. Controlling Destinies: Greater
Opportunities for Indigenous Australians to Control their
Destinies.
- p. 18.
- The Native Title Act 1993: What it does and how it
works. Department of the Prime Minister and Cabinet, Canberra,
December 1994, p. 16.
- Quoted in Indigenous Legal Issues, Commentary and
Materials, ed. Heather McRae et. al, LBC Information Services,
North Ryde, 1977, p. 299.
- Towards Social Justice? Compilation Report of
First-Round Consultations, furthering the process of consultation
by the Council for Aboriginal Reconciliation, ATSIC and Office of
the Aboriginal and Torres Strait Islander Social Justice
Commission, October 1994.
- The Age, 25 August 1998, see also The Age, 17
September, 1998.
- See for example Mick Dodson and Sarah Pritchard, 'The
Government goes it alone', The Age, 17 September 1998.
- See, for example, Debra Jospon, 'Why Aborigines now fear the
worst, Sydney Morning Herald, 13 April 1996.
- See the present author's paper, Identifiable Commonwealth
Expenditure on Aboriginal and Torres Strait Islander Affairs,
Current Issues Brief, No. 18, Department of the Parliamentary
Library, Canberra, 1997-98.
- See for example Paul Burke, who argued in 'Evaluating the
Native Title Amendment Act 1998', Australian Indigenous Law
Review, 3, 1998, pp. 355-6 that under the new Native Title
Amendment Act (NTAA):
there is a reduction in the say native title
holders have about exploration in their traditional country,
moderated to some extent by alternative schemes for
consultation
there will be an opportunity for states and
territories to replace the Right To Negotiate (RTN) on pastoral
leases with an alternative scheme that has many elements of the
RTN. The practical effect will depend on what schemes are actually
implemented by the various state governments
the full range of primary production activities
on what are now pastoral leases will be allowed without negotiating
with the native title holders. While there are some limits on this,
they are mostly ineffective
despite some improvement in procedural rights
for native title holders, overall it makes it marginally easier for
state governments to pursue the complete extinguishment of native
title on pastoral leases by compulsory acquisition of coexisting
native title rights and upgrading the lease to freehold, thereby
extinguishing all native title rights
interim statutory access rights to pastoral
leases will be available to some, but not to those indigenous
people who have been locked out of their traditional country or who
for some other reason did not have regular physical access at the
date of the Wik decision
native title holders will have less of a say in
a whole range of Government activities on their traditional
country, including the management of national parks, forest
reserves and other reserves, public facilities and water
resources
although some of the extinguishment pre-empting
the common law has been removed, the NTAA still says what kinds of
leases (in the Schedule) extinguish native title before the courts
have had a chance to consider them
native title holders, as in the 1993 Act, will
not be able to have a meaningful say in offshore fishing and mining
which impacts on native title rights
to obtain the RTN some native title holders will
be required to prove traditional connections and, in addition,
establish physical connection with the land. However, the NTAA does
provide a significant 'locked gates/stolen generation' exception,
and
depending on how the Federal Court interprets
the new provisions about its way of operating, it may be harder for
native title holders to present their case in a claim hearing.
Under the 1993 Act the court must take account of indigenous
cultural concerns. Under the NTAA taking account of cultural
concerns is made optional. Also the strict rules of evidence will
apply unless the claimants can convince the court otherwise.
- Senator Herron, Minister for Aboriginal and Torres Strait
Islander Affairs, Media Release, 16 December 1997.
- Aboriginal and Torres Strait Islander Commission (ATSIC),
Annual Report 1997-98, Canberra, pp. 22-23.
- As quoted in the special November 1998 edition of the Council
for Aboriginal Reconciliation's Walking Together, p. 4.
- Canberra Times, 30 November 1998.
- The Koori Mail, 21 October 1998.
- Canberra Times, 30 November 1998.
- Courier Mail, 23 October 1998.
- Canberra Times, 7 December 1998. Also 'Meet the Press'
Interview, Network Ten, 6 December 1998.
- Canberra Times, 22 December 1998.
- Aboriginal Independent Newspaper, 2 October 1998.
- Interview with Paul Bongiorno on Network Ten's 'Meet the
Press', 25 October 1998.
- Evelyn Scott, 'The Meaning of Reconciliation', Keynote address
at the conference Remedies to Racial and Ethnic Economic
Inequality, Adelaide, 22 September 1998.
- Gustav Nossal, 'Let's call it for Australia', The Age,
29 October 1998.
- Michelle Grattan, 'Reconciled to change', Australian
Financial Review, 10 November 1998.
- Fred Chaney, 'The hidden barrier to reconciliation', Sydney
Morning Herald, 3 November 1998.
- Michelle Grattan, op. cit.
- Canberra Times, 1 December 1998.
- Michelle Grattan, op. cit.
- Quoted by David Brearley and David Nason, 'The Long Division',
Australian, 24 October, 1998.
- e.g. Sydney Morning Herald, 1 December 1998.
- Quoted in Michelle Grattan, op. cit.
- Peter Yu, 'Past Truths are essential to future harmony',
Land Rights Queensland, November 1998, p. 6.
- ATSIC Annual Report 1997-98, Chairman's address,
Canberra, p. 23.
- The Weekend Australian, 17 October 1998.
- Senator Woodley said a formal apology to the Stolen Generation
should be made not taking responsibility for what happened, or
accepting blame, but collectively expressing sorrow for the hurt
caused to indigenous families.
Support for self-determination is critical. The
Democrats share indigenous people's alarm at the Howard
Government's move to remove the words 'self-determination' from the
United Nations draft declaration on indigenous rights. This
represents the overturning of a 15-year policy of support for
self-determination for Aboriginal Australians. We hope the
Australian Government's lobbying efforts are unsuccessful but,
regardless of the outcome, the message sent to Aboriginal people is
not positive.
A document of reconciliation is due to be
launched in May 2000, a few months before the Olympics. The
importance of this document can't be understated. It must combine
symbolic commitment and decisive action for reconciliation. It must
frankly acknowledge the history of dispossession of indigenous
people that occurred as a result of white colonisation. It must set
out an action plan for change... legal and constitutional backing
for the document of reconciliation is fundamental.
The other most significant event affecting
reconciliation in the Olympics' lead-up will be the referendum on
the republic, due in 1999. This will also be a referendum on the
insertion into the preamble of the Constitution of Australia of a
clause recognising indigenous Australians as the original
inhabitants of this country...
Urgent problems relating to indigenous
disadvantage must be addressed. Indigenous people on remote
communities where there are chronic alcohol problems are living in
conditions not dissimilar to those in war zones. The Democrats are
considering a Senate inquiry into the crisis in remote indigenous
communities.
Native title is a cornerstone of reconciliation.
If the Senate ticks off state native-title regimes which raise the
high jump bar impossibly for native-title claimants, it will bear
responsibility for the continuing violence and despair infesting
indigenous communities as they continue to exist on fringes of
their traditional land.
Finally, personal relations between white and
indigenous leaders of this country must be healed. Moderate and
respected indigenous leaders like 'the father of reconciliation',
Pat Dodson, and former ATSIC chief Lowitja O'Donoghue have been
alienated by this Government. However, Dodson and O'Donoghue still
carry enormous weight in their communities and must be brought back
into reconciliation. John Woodley, 'PM must pursue reconciliation',
The Canberra Times, 15 December 1998.
- Frank Brennan, 'No indigenous reform without fairness on both
sides', Australian,16 October 1998.
- ATSIC, op. cit. p. 23.
- Cheryl Saunders, 'The Australian Constitution and a National
Document of Reconciliation', in the special November 1998 edition
of the Council for Aboriginal Reconciliation's Walking
Together, pp. 6-7.
- The Age, 30 November 1998.
- See, for example, the comments by ATSIC submission to the
Parliamentary Joint Committee on Native Title and the Aboriginal
and Torres Strait Islander Land Fund, No. HA11(a),15 and Dr Evatt
in submission No. HA38 to the joint committee, p. 5.
- e.g. Stephen Harris, Two way Aboriginal schooling:
education and survival, Canberra, Aboriginal Studies Press,
1990; Tom Harris, 'Talking is not enough': A review of the
education of traditionally oriented Aboriginal people in the
Northern Territory, Office of the Minister for Education, the
Arts and Cultural Affairs, Darwin, 1990; National Review of
Education for Aboriginal and Torres Strait Islander peoples,
Final Report, AGPS, Canberra, 1994; Desert Schools.
Volume 3a literature review and bibliography, DEETYA,
Canberra, 1996; Stephen Harris in Aboriginal Languages in
Education, IAD, Alice Springs, 1994.
- Canberra Times, 11 December 1998.
- Paul Turnbull, 'No morality in denying Aboriginal war
memorial', Australian, 27 November 1998.
- Canberra Times, 26 January 1999
- Sydney Morning Herald, 3 February 1999.
- The Age, 5 January 1999.
- Northern Territory News, 27 January 1999 and
Canberra Times, 27 January 1999.
- ATSIC Media Release, 'Australia fails international
standards on racial discrimination', 18 February 1999.
- Canberra Times, 8 February 1999.
- ibid.
- Democrats' Party Room Bulletin, Tuesday 16 February
1999.
- Transcript of the Prime Minister, The Hon. John Howard MP,
Press Conference, Prime Minister's Courtyard, Parliament House, 23
March 1999.
- Robert McClelland MP, Shadow Attorney-General, Media
Release, 24 March 1999.
- ibid.
- Hon Peter Reith, Speaking Notes, Address to CEOs for
Indigenous Employment Meeting, 27 May 1999.
- West Australian, 4 June 1999.
- Council for Aboriginal Reconciliation, Draft Document for
Reconciliation, 1999.
- Colin Macleod, Patrol in the Dreamtime, Random House,
Sydney, 1996.
- Ron Brunton, 'Genocide, the "Stolen Generation" and the
"Unconceived Generations"', Quadrant, May 1998, pp. 19-24.
- Kenneth Minogue, 'Aborigines and Australian Apologetics',
Quadrant, September 1998, pp. 18 & 20.
- See Robert Manne, 'Whitewashing our dark past', Sydney
Morning Herald, 22 March 1999.
- Peter Howson, 'Rescued from the Rabbit Burrow',
Quadrant, June 1999, p. 13.
- Reginald Marsh, '"Lost", "Stolen" or "Rescued"?',
Quadrant, June 1999, p.18.
- Robert Manne, op. cit.
- Quoted in Robert Manne, 'Stolen Lives', The Age, 27
February 1999.
- See the quotations from many official sources presented by
Robert Manne, 'Stolen Lives', The Age, 27 February 1999.
- ibid. See also Bringing Them Home, Report of the
National Inquiry into the Separation of Aboriginal and Torres
Strait Islander Children from their Families, Human Rights and
Equal Opportunity Commission, Canberra, April, 1997.
- ibid.
- Quoted in Colin Tatz, Genocide in Australia,
Australian Institute of Aboriginal and Torres Strait Islander
Studies, Canberra, Research Discussion Paper No.8, A Research
Section Occasional Paper, p.28, citing Peter Read, The Stolen
Generation: the Removal of Aboriginal Children in New South Wales
1883 to 1969, NSW Ministry of Aboriginal Affairs, Occasional
Paper, Number 1, 1983.
- Quoted in Robert Manne, 'Stolen Lives', The Age, 27
February 1999.
- ibid.
- Sydney Morning Herald, 4 February 1999.
- Koori Mail, 16 December, 1998.
- Quoted by Peter Jull in his article 'Reconciliation and
Renewal', Arena, No. 39, February March 1999, p. 20.
- For more on the process see Hon. Lois M. Moorcroft, MLA,
'Correcting Past Wrongs: When is it the Government's
responsibility', Canadian Parliamentary Review, Winter
1998-99, v. 21 (4) pp. 2-4.
- Statement of Reconciliation,
http://www.inac.gc.ca/strength/declar.html
- ibid.
- The Search for Reconciliation in South Africa-
http://www.multiline.com.au/~ag/DeKlerk.
- ibid.
- Karin Landgren, 'Reconciliation: Forgiveness in the Time of
Repatriation', World Wide Refugee Information,
http://www.refugees.org/world/articles/repatriation.